/  & 


E.A.HAWKINS,  Jr. 


UNIVERSITY  OF  CALIFORNIA 
AT  LOS  ANGELES 


Gift  Of 

E.  A.  Hawking,  Jr. 


CHICAGO, 


PRINCIPLES  OF  PLEADING 


IN 


CIVIL  ACTIONS 


UNDER  THE  COMMON-LAW  SYSTEM  AND  AS  MODI- 
FIED AND  APPLIED  UNDER  MODERN 
CODES  AND  PRACTICE  ACTS 


INTRODUCED  BY  A  SUMMARY  VIEW  OF  THE  PROCEEDINGS 
IN  LEGAL  ACTIONS 


BY 

HENRY  JOHN  STEPHEN,  ESQ. 

MEMBER  OF  THE  FIRST  COMMITTEE  APPOINTED  TO  REFORM  ENGLISH  PROCEDURE, 
HILARY  RULES,  1834. 


SECOND  EDITION. 


JAMES  DEWITT  ANDREWS 

AUTHOR  OF  ANDREWS'  AMERICAN  LAW;  EDITOR  OF  WiiflON'a  WORKS,  COOLEY'S 

BLACK.STOKE,  ETC, 


CHICAGO: 

CALLAGHAN  AND  COMPANY. 

1901. 


COPYRIGHT,  1894, 

BY 
CALLAGHAN  AND  COMPANY. 

COPYRIGHT,  1901, 

BY 
CALLAGHAN  AND  COMPANY. 


STATE  JOURNAL  feDJTINQ  COMPANY, 
AND  STEUEOTYBERS, 

MADlaOJJ,  WIS. 


P-/S8 


EDITOR'S  PREFACE. 


The  investigation  and  observation  on  the  part  of  the  editor 
during  the  seven  years  which  have  elapsed  since  the  first  edi- 
tion of  this  treatise  was  published  have  convinced  him  that 
there  is  a  greater  similarity  in  the  rules  of  allegation  in 
vogue  in  the  various  states  and  in  the  varied  forms  of  proced- 
ure than  is  generally  affirmed  by  text  writers,  and  that  the 
common-law  rules  as  formulated  by  our  author,  modified  by 
the  logical  process  of  making  the  formal  allegations  correspond 
with  the  material  facts,  constitute  the  principal  body  of  rules 
governing  the  mode  of  pleading  in  all  forms  of  action,  equitable 
as  well  as  legal,  under  existing  codes  and  practice  acts. 

No  other  text-book,  so  far  as  the  editor's  observation  goes, 
but  treats  common-law,  equity  and  code  pleading  as  though 
they  were  distinct  systems,  whereas  in  this  treatise  they  are 
regarded  as  intimately  associated  and  interdependent. 

There  are  at  the  most  but  three  phases  or  forms  of  civil  pro- 
cedure in  the  United  States,  viz. :  code  procedure  similar  to  that 
introduced  in  New  York,  the  new  practice  acts  in  Connecti- 
cut and  Massachusetts,  and  the  modified  common-law  system 
as  seen  in  New  Jersey,  Michigan  and  Illinois. 

Most  of  the  states  have  what  is  called  the  code,  but  the  pro- 
cedure in  points  of  practice  differs  quite  as  much  between  the 
various  code  states  as  do  any  of  these  from  the  other  forms  of 
procedure. 

In  regard  to  the  principles  and  rules  of  pleading  the  case  is 
quite  the  reverse.  In  the  preface  to  the  former  edition  it  was 
stated  that  one  of  the  objects  of  the  book  was  to  make  apparent 

177188 


iv  EDITOR'S  PEEFAOB. 

how  little  of  substantial  disagreement  there  is  between  the 
systems  of  pleading  in  use  in  tlie  United  States. 

In  this  edition  an  attempt  is  made  to  carry  the  investiga- 
tion a  step  further  than  was  done  in  the  former  edition,  and 
to  point  out  the  application  of  these  rules  of  pleading  in  equity 
cases;  and  it  is  believed  that  it  is  made  plain  by  example 
and  authority  that  there  is  no  system  of  equity  pleading 
(using  this  term  in  its  narrow  sense)  independent  of  and  dif- 
ferent from  the  common-law  system,  but  that  on  the  contrary 
the  same  rules  of  allegation,  with  very  slight  variation,  obtain 
in.  both  jurisdictions.  In  this  no  claim  is  made  to  entire  origi- 
nality; Lube  in  his  equity  pleading  has  pointed  out  the  close 
analogy  between  the  common-law  and  the  equity  rules,  but  it 
will  be  seen  that  at  the  present  time  there  is  something  more 
than  analogy  or  similarity,  and  that  the  rules  are  in  most  cases 
identical.  Indeed  it  will  be  difficult  to  find  a  rule  of  equity 
pleading,  outside  of  the  rules  peculiar  to  bills  of  discovery 
(abolished  by  the  codes  and  almost  obsolete  elsewhere),  which 
was  not,  when  adopted  by  the  court  of  chancery,  an  established 
rule  of  common-law  pleading. 

The  choice  of  Stephen's  text,  rather  than  the  preparation  of 
a  new  treatise,  was  influenced  by  several  controlling  reasons. 
first,  it  is  generally  admitted  that  these  rules  are  as  much 
the  law  as  though  they  had  received  the  sanction  of  legislative 
enactment,  for  they  have  entered  into  and  become  a  part  of 
the  warp  and  woof  of  American  law  by  adoption.  "  Stephen  " 
is  universally  cited  by  the  compilers  of  dictionaries,  the  judges 
of  courts,  and  authors  of  works  upon  pleading,  under  both 
code  and  common-law  systems.  His  work  is  a  legal  classic ; 
it  is  a  vade  mecum  to  thousands  of  lawyers  practicing  under 
the  code. 

A  second  reason  influencing  the  choice  was  the  peculiar 
adaptability  of  the  arrangement  of  the  work  of  Stephen  to 
the  purpose  of  constructing  a  work  applicable  alike,  and 


EDITOR  S    PREFACE.  V 

equally  valuable,  in  all  of  the  states.  The  component  parts  or 
essential  elements  of  causes  of  action  are  not  changed  by  the 
codes;  neither  has  trial  by  jury  been  abolished;  and  the  neces- 
sity for  so  framing  allegations  as  to  produce  distinct  issues  of 
law  and  issues  of  fact  for  trial  by  judge  and  jury  respectively 
still  remains,  and  no  new  system  of  allegation  is  suggested  by 
any  of  the  codes.  It  follows  that  the  substantial  rules  for 
framing  the  allegations  of  facts  which  go  to  make  up  the  issue 
involved  in  causes  of  action  and  defenses  are  but  slightly  af- 
fected by  the  code. 

Third.  The  arrangement  of  Stephen's  text  made  the  work 
of  stating  the  points  of  agreement  or  divergence  between  the 
code  and  common  law  and  equity  rule  peculiarly  simple  and 
easy.  As  explained  in  his  preface  and  introduction,  Stephen 
treats  his  subject  in  a  manner  different  from  that  of  any  writer 
who  preceded  him,  in  this:  that  he  codifies  the  rules  independ- 
ently of  the  forms  of , action,  and  with  the  main  idea  that  the 
system  of  pleading  was  not  dependent  on  forms  of  action.  It 
follows  as  of  course  that  the  abolition  of  forms  of  action  did 
not  abolish  the  rules  of  pleading. 

To  this  main  plan  he  added  another  collateral  feature  ex- 
tremely useful  to  the  present  purpose.  Chapter  I  of  his  book 
(chapter  Y  of  this)  explains  the  proceedings  in  an  action  from 
beginning  to  termination,  and  comprises  a  brief  treatise  upon 
practice.  This  enables  the  editor  to  present  quite  enough  of 
explanation  and  modern  authority  to  give  a  fair  idea  of  the 
modern  practice,  and  preserves  enough  of  the  ancient  to  ex- 
plain the  evolution  and  development  of  the  existing  law.  A 
consideration  of  these  facts  is  sufficient  to  show  that  in  order 
to  present  an  acceptable  treatise  upon  pleading  applicable  any- 
where, the  work  of  Stephen  must  necessarily  constitute  the 
groundwork  of  it  all;  and  that  in  view  of  the  fact  that  prac- 
tically all  of  the  text  of  "  Stephen  "  has  been  quoted  and  cited 
by  the  authorities,  it  seemed  best  to  give  the  original  author- 


VI  EDITOR  S   PREFACE. 

ity  in  the  first  instance,  thereby  doing  justice  to  the  author 
and  presenting  the  reader  a  text  which  has  upon  it  the  "  mint 
mark  "  of  genuine  authority.  Even  where  the  text  has  been 
modified,  the  original  statement  throws  light  on  the  reason 
and  application  of  the  rule. 

The  text  of  the  first  edition  has  been  in  the  main  preserved ; 
but  frequent  interpolations  have  been  made  in  order  to  present 
in  the  text  the  modern  modification  or  amplification  of  the  an- 
cient rule.  The  scope  of  the  original  work  is  enlarged  by  a  brief 
introduction  explaining  the  origin,  object  and  development  of 
common-law  pleading,  and  its  relation  to  modern  reformed 
procedure.  New  chapters  have  been  added  upon  the  subject 
of  "  Joinder  of  Parties  "  and  the  "  Election  of  Remedies,"  hav- 
ing for  their  object  not  simply  the  statement  of  the  instances 
in  which  such  joinder  and  election  may  be  made,  but  rather  to 
make  clear  the  principles  upon  which  the  rules  depend,  and 
thus  more  thoroughly  carry  out  the  design  which  runs  through 
the  whole  work.  Dicey's  English  rules  of  joinder  have  been 
paralleled  by  the  modern  American  rules  wherever  his  are  in- 
accurate or  inapplicable  to  the  present  state  of  the  law. 

The  book  has  been  divided  into  chapters  and  sectionized,  in 
order  that  the  scope,  plan  and  arrangement  may  be  clear  and 
easily  understood  by  students  with  whom  "  Stephen  "  has  long 
been  a  favorite  author.  The  citation  of  cases  will,  it  is  believed, 
be  found  sufficient  in  number  and  of  such  a  character  as  to 
render  the  book  of  permanent  and  practical  value. 

JAMES  DE  WITT  ANDREWS. 
CHICAGO,  June  15, 1901. 


AUTHOR'S  PREFACE. 


The  science  of  pleading,  though  vying  with  most  other 
branches  of  our  law  in  antiquity,  and  always  among  the  high- 
est in  professional  estimation,  has  been  among  the  last  to  re- 
ceive satisfactory  illustration  from  the  press.  It  is  true  that 
at  early  periods  there  were  treatises  on  this  subject,  but  their 
plans  were  confined  and  defective.  The  most  important  of 
these  is  the  Doctrina  Placitandi,  published  in  the  reign  of 
Charles  II. ;  a  work  which,  though  extremely  learned  and 
elaborate,  and  for  a  long  time  justly  considered  as  the  cap- 
ital source  of  information  upon  pleading,  amounts  after  all 
to  no  more  than  an  extensive  collection  of  adjudged  points, 
classed  without  any  skill  of  arrangement  under  titles  in  alpha- 
betical series.  In  more  modern  times  the  Digest  of  the  Laws 
of  England,  by  Lord  Chief  Baron  Comyns,  presented,  under 
the  title  "Pleader,"  a  more  systematic  compilation  upon  this 
subject  than  had  previously  appeared,  comprising  the  sub- 
stance not  only  of  t^he  authorities  collected  in  the  Doctrina 
Placitandi,  but  also  of  the  cases  subsequently  decided,  and , 
reducing  the  whole  under  different  heads  upon  a  plan  pecul- 
iarly scientific  and  masterly.  It  is,  however,  in  its  nature  only 
a  digest  of  authorities,  and  better  adapted,  therefore,  to  the 
objects  of  the  practitioner  than  of  the  student.  Afterwards 
appeared  the  edition  of  Saunders'  Keports,  by  Mr.  Serjeant 
"Williams,  the  notes  in  which  comprise  a  mass  of  most  valuable 
explanatory  matter  on  the  subject  in  question ;  but,  at  the 
same  time,  consist  only  of  detached  commentaries  on  such 
different  points  of  inquiry  as  happen  to  be  suggested  by  the 


AUTHOR  S    PREFACE. 

text,  without  aiming  at  the  character  or  possessing  the  ad- 
vantages of  a  regular  treatise. 

It  is  to  a  writer  of  our  own  day  that  the  honor  is  due  of 
having  first  thrown  effectual  light  upon  the  science  of  plead- 
ing by  an  elaborate  work,  in  which  all  its  different  rules  are 
collected,  arranged  in  convenient  divisions,  and  illustrated  by 
explanation  and  example.  The  work  here  mentioned  is  the 
well  known  treatise  on  pleading,  by  Mr.  Chitty;  which  no 
person,  competent  to  appreciate  the  difficulty  of  the  task 
performed,  can  ever  peruse  without  high  admiration  of  the 
learning,  talent  and  industry  of  the  author.  This  has  been 
since  followed  by  an  able  publication  of  Mr.  Archbold,  on 
"  The  Law  Relative  to  Pleading  and  Evidence ; "  comprising 
another  regular  treatise  on  pleading,  compiled  on  a  plan  in 
the  nature  of  a  digest,  (a) 

The  two  works  last  mentioned  have  left  very  little  to  be 
added  to  the  stock  of  practical  information  on  the  subject  of 
which  they  treat.  But  neither  in  these  nor  in  any  other 
publication  has  any  attempt  been  hitherto  made  to  develop 
systematically  the  principles  of  this  science,  or,  in  other 
words,  to  explain  its  scope  and  tendency,  to  select  from  the 
mass  of  its  various  rules  such  as  seem  to  be  of  a  primary  and 
fundamental  kind,  and  to  trace  the  connection  of  these  rules 
and  show  their  bearing  as  parts  of  a  general  scheme  or  sys- 
tem. It  is  to  this  object  that  the  present  work  is  directed. 

The  attempt  was  not  only  novel  but  difficult.  The  author 
had  not  only  to  collect,  but  in  some  degree  also  to  trace  and 
explore  the  principles  of  which  he  treats,  and  to  subject  the 
science  of  pleading  to  a  new  order  or  arrangement,  such  as 

(a)  The  preceding  enumeration  has  been  intentionally  confined  to  the 
principal  publications  on  this  subject  There  have,  however,  been  several 
treatises  of  minor  bulk,  containing  general  information  on  pleading.  Among 
these  ought  to  be  noticed,  The  Summary  of  Pleading,  and  An  Elementary 
Treatise  on  Pleading  in  Civil  Actions  —  the  latter  by  Mr.  E.  Lawes.  They 
are  both  of  date  prior  to  Mr.  Chitty's  work. 


AUTHOR  S    PREFACE.  IX 

seemed  to  him  best  adapted  to  the  exposition  of  these  princi- 
ples in  the  clearest  light.  For  that  arrangement  he  has  no 
authority  to  produce,  but  he  persuades  himself  that  the  care- 
ful and  intelligent  reader  will  not  fail  to  recognize  the  sound- 
ness of  the  analysis  on  which  it  is  founded. 

It  may  be  useful  here  to  observe  that  while  in  other 
treatises  the  subject  of  pleading  has  been  usually  discussed  in 
the  order  of  declaration,  plea,  replication,  etc.,  it  is  divided  in 
the  following  pages  in  reference  to  the  different  objects  or 
results  which  its  rules  are  conceived  respectively  to  contem- 
plate. In  one  .respect,  at  least,  this  deviation  from  the  com- 
mon method  is  attended  with  evident  advantage.  It  is  an 
inconvenience  of  that  method  that  the  same  rule  requires  to 
be  often  repeatedly  noticed,  in  reference  to  each  of  the  con- 
secutive divisions  in  the  series  of  the  pleadings,  so  that  a 
•doctrine  once  laid  down  with  respect  to  the  declaration  is 
afterwards  propounded  in  a  different  place,  but  in  nearly 
the  same  form,  when  the  replication  comes  to  be  considered. 
The  plan  adopted  in  the  present  publication  avoids  this  incon- 
venience and  presents  the  rules  to  the  reader  in  an  entire  and 
•single  view. 

The  nature  of  the  work  has  led  incidentally  to  the  inser- 
tion, in  the  first  chapter,  of  a  summary  and  connected  account 
of  the  whole  proceedings  in  a  suit.  It  is  believed  that  the 
treatises  to  which  students  have  hitherto  had  recourse  for 
such  elementary  information  have  not  been  found  to  answer 
the  purpose  in  a  satisfactory  manner ;  and  some  hope  is  con- 
sequently entertained  that  this  part  of  the  work  may  prove 
particularly  acceptable  to  that  class  of  readers. 


CONTENTS. 


References  are  to  sections. 

CHAPTER  I. 

INTRODUCTION  — THE  DEVELOPMENT  AND  RELATION  OF  SYS- 
TEMS 

The  object  of  pleading 1 

Definition 2 

The  plan .' 3 

Utility  of  scientific  pleading 4 

The  place  of  pleading  in  jurisprudence 5 

Classification  of  English  law 6 

Modern  reforms  in  procedure 7 

The  relation  of  common4aw  pleading  to  existing  systems 8 

The  identity  of  the  equity  and  common-law  rules  and  principles  of 

pleading 9 

The  dependence  of  code  pleading  upon  the  principles  of  the  common- 
law  system 10 

The  rules  of  pleading  not  dependent  on  forms  of  action 11 

Reason  for  technicality 12 

The  rise  of  the  court  of  chancery 13 

The  court  of  chancery  in  America 14 

New  York  and  Pennsylvania  procedure. 15 

Distinctive  features  of  code  reforms 16 

The  systems  contracted 17 

The  path  of  future  reform 18 

CHAPTER  II. 

PARTIES  TO  ACTION& 

Outline  of  subject 19 

Who  may  invoke  the  judicial  power 20 

Actions  must  be  prosecuted  by  the  real  party  in  interest  —  Who  so  re- 
garded —  Assignment  and  transfer  of  rights  of  action. ;. .  21 

Privity 22 

The  name  of  plaintiff 23 

Election  of  parties 24 

Joinder  of  parties  under  the  common  law — Plaintiffs  in  actions  ex  con- 

tractu 25 

The  rules  for  determining  what  are  joint  and  several  rights 26 

Interest  and  property  —  Definitions 27 


Xll  CONTENTS. 

References  are  to  sections. 

Common-law  and  code  rules  as  to  joinder  contrasted 28 

Equity  rules  under  the  common  law  and  the  codes 29 

All  who  are  united  in  interest  must  join    30 

A  necessary  plaintiff  may  be  joined  against  his  protest 31 

Joinder  of  parties 32 

Non-joinder  of  plaintiffs  in  action  ex  contractu 33 

Misjoinder  of  plain tLTs  ex  contractu 34 

Non- joinder  of  defendants  ex  contractu 35 

Misjoinder  of  defendants  ex  contractu 36 

Non-joinder  of  plaintiffs  in  cases  ex  delicto 37 

Misjoinder  of  plaintiffs  ex  delicto 38 

Non-joinder  of  defendants  ex  delicto 39 

Several  liabilities  —  Several  judgments  —  One  satisfaction  —  Election . .  40 

Misjoinder  of  defendants  ex  delicto 41 

Statutes  of  amendments  remove  ancient  dangers 42 

CHAPTER  III. 

SPECIFIC  RULES  AS  TO  PARTIES. 

Specific  rulas  for  selecting  parties 43 

CHAPTER  IV. 

ELECTION  OF  REMEDIES. 

Election  of  remedies 44 

Utility  of  fictions 45 

The  doctrine  illustrated 46 

Grounds  of  the  implication 47 

Extent  of  the  right 48 

An  election  between  inconsistent  remedies  is  binding 49 

The  causes  of  action  must  be  identical 50 

Consideration  governing  selection  of  remedy 51 

CHAPTER  Y. 

CAUSES  OF  ACTION,  FORMS  OF  ACTION,  AND  PROCEEDINGS  IN 

ACTIONS. 

Primary  rule  of  procedure 52 

The  principal  object  of  pleading 53 

Necessity  for  framing  issues 54 

The  utility  of  forms  of  action 55 

Preparation  for  pleading 56 

The  art  of  pleading 57 

The  transaction. 58 

Right  of  action,  cause  of  action,  ground  of  action,  and  subject  of  ac- 
tion distinguished 59 

The  classification  of  actions 60 

Tort  defined —  Actions  ex  delicto  and  ex  contractu  distinguished 61 


CONTENTS. 

References  are  to  sections. 

The  superior  courts  of  England 62 

Commencement  of  actions  —  The  original  writ  in  England 63 

Origin  of  forms  of  action 64 

Forms  of  action 65 

Writ  of  right 66 

The  writ  of  formedon 67 

The  writ  of  dower 68 

The  writ  of  quare  impedit 69 

Modern  mixed  actions 70 

Forcible  entry  and  detainer 71 

The  action  of  waste 72 

The  writ  of  entry 73 

Trespass  to  try  title 74 

Personal  actions 75 

The  action  of  debt 76 

The  action  of  account 77 

The  writ  of  covenant 78 

The  writ  of  detinue 79 

The  writ  of  trespass 80 

The  action  of  trespass  upon  the  case 81 

The  action  of  assumpsit 82 

The  action  of  trover 83 

Replevin, 84 

Ejectment 85 

Return  of  writ 86 

Process 87 

Appearance  and  pleading  —  Ancient  practice 88 

Formation  of  issue 89 

The  record  roll 90 

Appearance  —  Modern  practice 91 

Pleadings 92 

Signing  of  pleading 93 

The  declaration  or  count 94 

The  order  and  manner  of  pleading 95 

Classes  of  pleas 96 

Pleas  must  be  pleaded  in  due  order. 97 

A  plea  to  the  jurisdiction 98 

A  plea  in  suspension 99 

A  plea  in  abatement  of  the  writ 100 

Oyer  of  the  writ •••  101 

Pleas  in  bar. 102 

Demurrer. 103 

Arrival  at  issue 104 

Accepting  the  issue 105 

An  issue 106 

Course  and  extent  of  pleading 107 

Pleas  puis  darreign  continuance 1' 

Demand  of  view. .  109 


XIV  CONTENTS. 

References  are  to  sections. 

Voucher  of  warranty 110 

Oyer  and  prot'ert Ill 

Imparlance 112 

Making  up  the  issue 113 

Of  amendments 114 

Entering  the  issue 115 

The  decision  of  issues  in  law 116 

Trial  of  issues  in  fact  117 

Trial  by  jury 118 

Trial  by  jury  (continued) 119 

Burden  of  proof 120 

Variance 121 

The  verdict j 122 

Bill  of  exceptions 123 

Demurrer  to  evidence 124 

General  and  special  verdict 125 

Special  verdict  —  Special  findings 126 

Proceedings  after  verdict 127 

Other  modes  of  trial 128 

The  judgment 129 

Writs  of  execution 130 

Writs  of  error 131 

CHAPTER  VI. 

OF  THE  PRINCIPAL  RULES  OF  PLEADING. 

The  object  of  pleading 132 

The  origin  of  coming  to  issue 133 

Singleness  of  issues 134 

Certainty  of  issue 135 

CHAPTER  VII. 

OF  RULES  WHICH  TEND  SIMPLY  TO  THE  PRODUCTION  OF  AN 

ISSUE. 

RULE  L 

After  the  declaration,  the  parties  must  at  each  stage  demur,  or  plead 

by  way  of  traverse,  or  by  way  of  confession  and  avoidance. . .  137 

L  Of  demurrer 138 

1.  Of  the  nature  and  properties  of  a  demurrer 138 

2.  Of  the  forms  of  demurrer 139 

8.  Of  the  effect  of  demurring 140 

4  Of  the  effect  of  pleading  over  without  demurrer 141 

Of  aider,  by  verdict 142 

Of  aider,  by  the  statutes  of  jeofails  and  amendments 142 

5.  Of  the  considerations  which  determine  the  pleader  in  his 
election  to  demur  or  plead 143 


CONTENTS.  XV 

Peferences  are  to  sections. 
H.  Of  pleadings 144 

1.  Of  the  nature  and  properties  of  traverses  or  denials 144 

Of  common  traverses 144 

Of  general  issues  in  various  actions 145-152 

Observations  on  the  general  issue 153 

Special  pleas 154 

Of  the  traverse  de  injuria 155 

Of  special  traverses 155-160 

Of  traverses  in  general 161-163 

2.  Of  the  nature  and  properties  of  pleadings  in  confession  and 

avoidance 164 

Of  pleas  in  justification  or  excuse,  and  pleas  in  discharge.  164 
Of  color 164 

3.  Of  the  nature  and  properties  of  pleadings  in  general,  with- 

out refereilce  to  their  quality,  as  being  by  way  of  trav- 
erse, or  confession  and  avoidance 165 

Of  protestation 165 

Exceptions  to  the  rule 166 

In  case  of  dilatory  pleas 166 

pleadings  in  estoppel 166 

new  assignments    ,  167 

RULE  IL 

Upon  a  traverse  or  denial,  issue  must  be  tendered 168 

Different  forms  of  tendering  issue 168 

Another  form  of  the  rule,  viz.,  that  upon  a  negative  and  affirma- 
tive the  pleading  shall  conclude  to  the  country,  but  otherwise 

with  a  verification 168 

Exception  —  that  when  new  matter  is  introduced,  the  pleading  should 

always  conclude  with  a  verification 168 

RULE  IIL 

Issue,  when  well  tendered,  must  be  accepted 169 

Of  the  similiter 169 

Of  the  joinder  in  demurrer 169 

CHAPTER  VIII. 

OF  RULES  WHICH  TEND  TO  SECURE  THE  MATERIALITY  OF  THE 

ISSUE. 
RULE  L 

Traverse  must  not  be  taken  on  an  immaterial  allegation 170 

But  where  there  are  several  material  allegations  it  is  in  the  op- 
tion of  the  pleader  to  traverse  which  he  pleases 171 

RULE  IL 

A  traverse  must  not  be  too  large  nor  too  narrow 172 

But  a  party  may,  in  general,  traverse  a  material  allegation  of  title 
or  estate  to  the  extent  to  which  it  is  alleged,  though  it  needed 

not  to  be  alleged  to  that  extent 1 

Of  a  traverse  too  narrow *'* 

b 


XVI  CONTENTS. 

References  are  to  sections. 

CHAPTEE  IX. 

OF  RULES  WHICH  TEND  TO  PRODUCE  SINGLENESS  OR  UNITY 

IN  THE  ISSUE. 
RULE  L 

Pleadings  must  not  be  double. 175 

Of  the  nature  of  duplicity,  in  general 175 

1.  Singleness  relates  to  a  single  claim .' .  176 

2.  In  case  of  several  defendants 177 

Rules  subordinate  and  illustrative '. 178 

1.  A  pleading  will  be  double  that  contains  several  answers, 

whatever  be  the  class  or  quality  of  the  answer 178 

2.  Matter  may  suffice  to  make  a  pleading  double,  though  it  be 

ill  pleaded 178 

3.  But  matter  immaterial  will  not  operate  to  make  a  pleading 

double 179 

4.  Material  matter  ill  pleaded  may • 180 

5.  Matter  that  is  pleaded  only  as  necessary  inducement  to  an- 

other allegation  will  not  make  a  pleading  double 181 

6.  Nor  matters,  however  multifarious,  that  together  constitute 

but  one  connected  proposition  or  entire  point 182 

The  general  issue  as  applied  is  a  doable  plea 183 

Of  several  counts  184 

Examples  of  several  counts lw 5 

For  a  single  cause 186 

Common  counts    187 

Of  several  pleas 188 

Several  replications 188 

Limitations  of  the  rule 189 

RULE  IL 

It  is  not  allowable  both  to  plead  and  to  demur  to  the  same  matter 190 

CHAPTER  X. 

OF  RULES  WHICH  TEND  TO  PRODUCE   CERTAINTY  OR  PARTIC- 
ULARITY IN  THE  ISSUE. 

RULE  L 

The  pleadings  must  have  certainty  of  place 191 

Ancient  reason  for  law  of  venue 192 

Modern  reason  for  the  rule 193 

Local  and  transitory  actions 193 

RULE  II. 
The  pleadings  must  have  certainty  of  time 194 

RULE  III. 
The  pleadings  must  specify  quality,  quantity  and  value 195-198 

RULE  IV. 

The  pleadings  must  specify  the  names  of  persons 199 

Effect  of  misnomer .  200 


CONTENTS. 

Beferences  are  to  sections. 

r  ^ 

RULE  V. 

The  pleadings  must  show  title OQI 

L  Of  the  case  where  a  party  alleges  title  in  himself,  or  in  another 

whose  authority  he  pleads 202 

1.  Of  alleging  a  title  of  possession 203-205 

2.  Of  alleging  title  in  its  full  and  precise  extent 200 

Of  the  allegation  of  the  title  itself.  v 206 

Of  showing  its  derivation 207 

As  to  estates  in  fee  simple 207 

As  to  particular  estates 208 

Where  a  party  claims  by  descent  or  by  conveyance. .  209 

3.  Of  alleging  a  general  freehold  title  liberum  tenementum. . .  210 
IL  Of  the  case  where  a  party  alleges  title  in  his  adversary 211,  212 

On  issue  title  must  be  strictly  proved.   213 

Exception  to  rule. —  No  "title  need  be  shown  where  the  opposite  party  is 

estopped  from  denying  it 214 

RULE  VI. 
The  pleadings  must  show  authority 215 

RULE  VIL 

Jn  general,  whatever  is  alleged  in  pleading  must  be  alleged  with  cer- 
tainty   216 

On  issue  the  allegation  must  be  proved  as  laid 217 

SUBORDINATE  RULES  TENDING  TO  LIMIT  OR  RESTRAIN  THE  DEGREE  OF 

CERTAINTY. 

1.  It  is  not  necessary  in  pleading  to  state  that  which  is  merely  matter 

of  evidence 218 

2.  It  is  not  necessary  to  state  matter  of  which  the  court  takes  notice 

ex  officio 219 

3.  It  is  not  necessary  to  state  matter  which  would  come  more  prop- 

erly from  the  other  side 220 

4.  It  is  not  necessary  to  allege  circumstances  necessarily  implied 221 

5.  It  is  not  necessary  to  allege  what  the  law  will  presume 222 

6.  A  general  mode  of  pleading  is  allowed  where  great  prolixity  is 

thereby  avoided 223 

7.  A  general  mode  of  pleading  is  often  sufficient  where  the  allegation 

on  the  other  side  must  reduce  the  matter  to  certainty 224 

8.  No  greater  particularity  is  required  than  the  nature  of  the  thing 

pleaded  will  conveniently  admit 225 

9.  Less  particularity  is  required  when  the  facts  lie  more  in  the  knowl- 

edge of  the  opposite  party  than  of  the  party  pleading 226 

10.  Less  particularity  is  necessary  in  the  statement  of  matter  of  induce- 

ment or  aggravation  than  in  the  main  allegations 227 

11.  With  respect  to  acts  valid  at  common  law.  but  regulated  as  to  the 

mode  of  performance  by  statute,  it  is  sufficient  to  use  such  cer- 
tainty of  allegation  as  was  sufficient  before  the  statute 228 


XV111  CONTENTS. 

References  are  to  sections. 

CHAPTER  XI. 

OF  RULES  WHICH  TEND  TO  PREVENT  OBSCURITY  AND  CON- 
FUSION IN  PLEADING. 

RULE  L 

Pleadings  must  not  be  insensible  nor  repugnant 229 

RULE  II. 

Pleadings  must  not  be  ambiguous,  or  doubtful  in  meaning,  and  when 
two  different  meanings  present  themselves,  that  construction 
shall  be  adopted  which  is  most  unfavorable  to  the  party  pleading  280 

Application  of  this  rule 230 

Degrees  of  certainty  required 231 

Of  negative  pregnant 232 

RULE  IIL 

Pleadings  must  not  be  argumentative 233 

Two  affirmatives 234 

Two  negatives 235 

RULE  IV. 

Pleadings  must  not  be  in  the  alternative 236 

RULE  V. 

Pleadings  must  not  be  by  way  of  recital,  but  must  be  positive  in  their 

form 237 

RULE  VL 

Things  are  to  be  pleaded  according  to  their  legal  effect 238 

RULE  VII. 

Pleadings  should  observe  the  known  forms  of  expression,  as  contained 

in  approved  precedents 239 

RULE  VIII. 

Pleadings  should  have  their  proper  formal  commencements  and  con- 
clusions    240 

Anomalous  forms  of  concluding 241 

A  defect  or  informality  in  concluding  is  ground  for  demurrer. ....  242 

RULE  IX. 
A  pleading  which  is  bad  in  part  is  bad  altogether 243 

CHAPTER  XII. 

OF  RULES  WHICH  TEND  TO  PREVENT  PROLIXITY  AND  DELAY 

IN  PLEADING. 
RULE  I. 

There  must  be  no  departure  in  pleading 244-246 

In  declaring 244 


CONTENTS.  XIX 

References  are  to  sections. 
There  must  be  no  departure  — 

In  pleas 244 

In  replications 244 

In  rejoinder 245 

RULE  II. 
Where  a  plea  amounts  to  the  general  issue  it  should  be  so  pleaded 247 

RULE  IIL 

Surplusage  is  to  be  avoided 248 

Is  not  reached  by  demurrer  but  by  motion 249 

CHAPTER  XIII. 

OF  CERTAIN  MISCELLANEOUS  RULES. 

RULE  L 
The  declaration  should  commence  with  a  recital  of  the  original  writ. .  250 

RULE  II. 
The  declaration  must  be  conformable  to  the  original  writ,  see  §  53. 

RULE  ILT. 

The  declaration  should,  in  conclusion,  lay  damages  and  allege  produc- 
tion of  suit 251 

RULE  IV. 
Pleas  must  be  pleaded  in  due  order,  see  §  97. 

RULE  V. 
Pleas  must  be  pleaded  with  defense 252 

RULE  VL 
Pleas  in  abatement  must  give  the  plaintiff  a  better  writ  or  bill 253 

RULE  VII. 

Dilatory  pleas  must  be  pleaded  at  a  preliminary  stage  of  the  suit 254 

RULE  VIIL 

All  affirmative  pleadings  which  do  not  conclude  to  the  country  must 
conclude  with  a  verification 255 

RULE  IX. 

In  all  pleadings,  when  a  deed  is  alleged  under  which  the  party  claims 
or  justifies,  profert  of  such  deed  must  be  made 256 

RULE  X. 
All  pleadings  must  be  properly  entitled  of  the  court  and  term 257 

RULE  XL 

All  pleadings  ought  to  be  true  —  Sham  pleading 258 

The  doctrine  of  res  adjudicata 259 


XX  CONTENTS. 

CHAPTER  XIV. 

CONCLUSION. 

Sec. 

The  merits  of  the  system  of  pleading 260 

1.  Utility  of  an  issue,  p.  483. 

2.  An  issue  a  peculiarity  of  the  common  law,  p.  484, 

3.  An  issue  necessary  to  jury  trial,  p.  484, 

The  Scottish  method,  p.  484. 
The  English  method,  p.  485. 
4  Advantages  and  defects,  p.  486. 

a.  Demurrers  for  form,  p.  437. 

b.  Singleness  of  issue  —  Cured  by  allowing  several  counts  and  sev- 

eral pleas,  p.  438. 

c.  The  general  issue  does  not  notify  and  is  double  —  Effect  of  bill 

of  particulars,  p.  440. 

Page. 

APPENDIX 493 

Editor's  Note  A.,  Joinder  of  Parties 493 

Editor's  Note  B.,  Joinder  of  Actions 497 

Author's  Notes  1  to  88  inclusive 504-574 

Editor's  Note  on  Amendments  ...  . . . . : 530 


TABLE  OF  CASES. 


References  are  to  pages. 


Ackley  v.  N.  C.  C.  Ry.  Co.,  4<X 

Ada  St.  M.  E.  Church  v.  Garnsey,  132, 
144,  183. 

Adair's  Adm'r  v.  Rogers,  280. 

Adams  v.  Filer,  200. 

Adams  v.  Muntin,  231. 

Adams  v.  Vose,  108. 

Adams  v.  Wiggins,  183. 

Adler  v.  State,  249. 

^Etna  Powder  Co.  v.  Hildebrand,  90, 
97,  308,  374 

African  M.  E.  Church  v.  McGruder, 
230. 

Aglionby  v.  Towerson,  417. 

Aiken  v.  Benedict,  142. 

Aldermann  v.  French,  169,  370. 

Alderson  v.  Ennor,  42,  89. 

Alderson  v.  Schultz,  136. 

Alexander  v.  Jacoby,  49,  50. 

Alexander  v.  Maurman,  471. 

Alhambra  Add.  W.  Co.  v.  Richard- 
son, 226. 

Allen  v.  Holton,  142. 

Allen  v.  Patterson,  29, 133, 155,  433. 

Allen  v.  Scott,  289. 

Allen  v.  Wat&on,  455. 

Ally  v.  McCabe,  248. 

Alsope  v.  Sytwell,  428. 

Alvarez  v.  Brenan,  183.     • 

Am.  Ex.  Bank  v.  Chicago  Nat.  Bank, 
217. 

Am.  Exp.  Co.  v.  Haggard,  184,  472. 

Ani.  Exp.  Co.  v.  Pinckney,  230. 

Am.  Ins.  Co.  v.  Butler,  385. 

Am.  Mortg.  Co.  v.  Hopper,  142. 

Amory  v.  Brodrick,  373. 

Anderson  v.  Case,  220. 

Anderson  v.  Moiiider,  50. 

Anderson  v.  Oscamp,  255,  308. 


Anderson  v.  Taylor,  117. 
Andrew  v.  Whitehead,  386. 
Andrews  v.  Allen,  125. 
Andrews  v.  Herriott,  378. 
Andrews  v.  Malpermera,  59. 
Andrus  v.  Waring,  458. 
Angus  v.  Trust  &  S.  B.,  200. 
Anhirn  v.  James,  436,  437. 
Anson  v.  Stuart,  260,  262. 
Anthony  v.  Wilson,  280. 
Arens  v.  Wier,  268. 
Arlett  v.  Ellis,  342. 
Arlington  v.  Merricke,  205. 
Arms  Co.  v.  N.  Y.  &  N.  H.  Ry.  Co., 

97,  357.    See  Winchester. 
Arnfield  v.  Bates,  381. 
Arnison  v.  Smith,  493. 
Arnold  v.  Angell,  520. 
Arnold  v.  Chapman,  108. 
Arnold  v.  Dimon,  431. 
Arthur  v.  Ingels,  127. 
Ashby  v.  White,  33,  36. 
Ashe  v.  Gray,  464. 
Asia  v.  Hiser,  141. 
A.,  T.  &  S.  F.  R.  Co.  v.  Feehan,  271, 

274 

Atlanta  v.  Buchanan,  229. 
Atl.  Nat.  Bank  v.  Harris,  57. 
Atty.-Gen.  v.  Meller,  401,  402,  426. 
Attwood  v.  Davis,  450. 
Atwater  v.  Fowler,  69. 
Auburn  Co.  v.  Leitch,  268,  269,  270, 

363,  371. 

Augusta  v.  Moulton,  200. 
Aultman  &  Co.  v.  Seglinger,  409,  441. 
Aurora  v.  West,  239,  268,  269. 
Austin  v.  Debnam,  170. 
Austin  v.  Hall,  59. 
Austin  v.  Seligman,  43. 


XXII 


TABLE    OF   CASES. 


References  are  to  pages. 


Austin  v.  Walsh,  59. 

Averell  v.  Smith,  129. 

A  very  v.  Tyringham,  133,  155. 

Avon  Mfg.  Co.  v.  Andrews,  147. 

Ayer  v.  Phillips,  119. 

Aylesbury  v.  Harvey.  475. 

Ayrault  v.  Chamberlain,  189. 

Ayres  v.  Kelley,  289,  330. 

Ayscough  v.  Bullard,  493. 

Babcock  v.  Chase,  46. 

Babcock  v.  Meek,  429. 

Babcock  v.  Huntington,  194. 

Bach  v.  Owen,  266. 

Backentors  v.  Stahler,  Adm'r,  61. 

Bacon  v.  Smith,  118. 

Badger  v.  Phinney,  109,  139. 

Baggie  v.  Illsley,  95. 

Baggs  v.  Bindskoff,  238. 

Bagley  v.  Kennedy,  142. 

Bailey  v.  Lindsey,  464. 

Bailey  v.  C.,  M.  &  St.  P.  Ry.  Co.,  94. 

Bailey  v.  Williams,  108. 

Baker  v.  Bessey,  120. 

Baker  v.  Jamison,  229. 

Baker  v.  Jewell,  59,  60. 

Baker  v.  M.  S.  &  N.  I.  Ry.  Co.,  350. 

Baker  v.  Rockabrand,  26. 

Baker  v.  Wheeler,  94. 

Baker  v.  Young,  168. 

Baltimore  &  O.  Ry.  Co.  v.  Harris,  179, 

268,  269. 

Baltzell  v.  Nosier,  364. 
Banfleld  v.  Leigh,  204,  475. 
Bank  v.  Waterman,  35. 
Bank  of  Central  City  v.  Hummel,  57. 
Bank  of  U.  S.  v.  Smith,  249. 
Banks  v.  Pratt,  417. 
Barber  v.  Smith,  45. 
Barber  v.  Summers,  431. 
Barco  v.  Fennell,  141. 
Barker  v.  Koozier,  132. 
Barker  v.  Lade,  441,  443. 
Barnes  v.  McArthur,  121. 
Barnes  v.  People,  185. 
Barnes  v.  Rembady,  226. 
Barnet  v.  Caruth,  218. 
Barnum  v.  Landon,  125. 
Bartholomew  v.  Jackson,  85. 
Bartlett  v.  Prescott,  370. 
Bartlett  v.  Wells,  454,  458. 


Basey  v.  Gallagher,  26. 

Bassett  v.  Bratton,  132, 170. 

Bassett  v.  Daniels,  247. 

Bassett  v.  Johnson,  147. 

Bateman  v.  Allen,  399. 

Bateman  v.  Clark,  441. 

Bates  v.  Jenkins,  384. 

Bathrick  v.  Detroit,  168. 

Batt  v.  Bradley,  330. 

Batterson  v.  Chicago  &  G.  R.  R.  Co., 

435. 

Battrell  v.  Ohio  River,  441. 
Baum  v.  Tonkin,  122. 
Bayard  v.  Malcolm,  231,  255,  273,  443. 
Beach  v.  Hotchkiss,  59. 
Beach  v.  King,  390. 
Beachley  v.  McCormick,  229. 
Beal  v.  Stone,  220. 
Beal  v.  Simpson,  309. 
Beard  v.  Hand,  453. 
Beardstown  v.  Virginia,  219. 
Beatty  v.  Hatcher,  219. 
Beaubien  v.  Hamilton,  249. 
Beckbill  v.  Turnpike  Co.,  225. 
Bedell  v.  Berkey,  201. 
Beebe  v.  Knapp,  443. 
Beers  v.  Shannon,  390. 
Belasyse  v.  Hester,  269. 
Bell  v.  Brown,  365. 
Bell  v.  Lyman,  62. 
Bellamy's  Case,  475. 
Belton  v.  Fisher,  185. 
Bemis  v.  Homer,  251,  265. 
Benbridge  v.  Day,  452. 
Bender  v.  Fromberg,  280. 
Benham  v.  Rowe,  219. 
Benner  v.  Weeks,  42. 
Bennett  v.  Bennett,  92,  137. 
Bennett  v.  Clough,  416. 
Bennett  v.  Edwards,  271. 
Bennett  v.  Filkins,  292. 
Bennett  v.  Mclntire,  268, 289, 309, 330, 

331. 

Bennett  v.  Pen.  &  O.  Co.,  248. 
Bennett  v.  Star  Mining  Co.,  481. 
Berham  v.  Cook,  141. 
Berry  v.  Gill  is,  42. 
Berry  v.  Savage,  384 
Bertie  v.  Pickering,  387. 
Beveridge  v.  Welch,  229. 


TABLE   OF   CASES. 


XX111 


References  are  to  pages. 


Bicknell  v.  Wetherell,  531. 
Bilderback  v.  Former.  126. 
Billingham  v.  Clark.  494. 
Bindon  v.  Robinson,  332,  333. 
Birch  v.  Bellamy,  425. 
Birch  v.  Wilson,  459,  461,  462. 
Birdseye  v.  Smith,  191. 
Bishop  of  Salisbury's  Case,  428. 
Black's  Ex'rs  v.  Black's  Ex'rs,  180. 
Black  v.  Foster,  298. 
Black  borough  v.  Davis,  398. 
Blackwood  v.  Brown,  40. 
Blagge  v.  Ilsley,  130. 
Blaisdell  v.  Ladd,  66. 
Blake  v.  Davis,  225. 
Blake  v.  Eldred,  365. 
Blakely  v.  Porter,  204 
Blalock  v.  Randall,  23,  132,  170. 
Bleeke  v.  Grove,  350,  351. 
Bletch  v.  Johnson,  185. 
Blockley  v.  Slater,  397. 
Bloodgood's  Estate,  415. 
Bloomington  v.  Legg,  Adm'r,  222. 
Boardman  v.  Westchester  Fire  Ins. 

Co.,  201. 

Bolton  v.  Bishop,  266. 
Bolton  v.  Cannon,  371. 
Bolton  v.  Cleveland,  416.- 
Bondnell  v.  Roberts,  291. 
Booth  v.  Briscoe,  493,  495. 
Booth  v.  McJilton,  229. 
Borkenhagen  v.  Paschen,  148. 
Boston  Ice  Co.  v.  Potter,  35,  38,  40, 43. 
Boston  Type    Foundry  v.   Spooner, 

188,  184,  47a 

Boulden  v.  Estey  Organ  Co.,  126. 
Bournonville  v.  Goodall,  384. 
Bovy's  Case,  414. 
Bowditch  v.  Mawley,  391. 
Bowen  v.  Aubry,  251. 
Bowen  v.  Hall,  137. 
Bowlus  v.  Phoenix,  321. 
Bowman  v.  St.  John,  308. 
Bowne  v.  Joy,  200. 
Bowser  v.  Matterly,  45. 
Bowyer  v.  Cook,  444,  445. 
Bowyers  Case,  376. 
Boyce  v.  Whitaker,  412. 
Boyd  v.  Blankman,  274 
Boyd  v.  Hoyt,  54. 
Boyson  v.  Thorn,  35. 


Braban  v.  Bacon,  417. 
Bracken  v.  Preston,  26. 
Bradbury  v.  Cony,  230. 
Bradbury  v.  Cronise,  435. 
Bradford  v.  Pickles,  137. 
Bradish  v.  Bishop,  373. 
Bradlaugh  v.  Gassett,  33. 
Bradley  v.  Barber,  308. 
Bradley  v.  Powers,  350,  451. 
Bradley  Salt  Co.  v.  Norfolk,  etc.  Ry. 

Co.,  126. 

Bradshaw's  Case,  426,  427. 
Bradshaw  v.  Morehouse,  237. 
Bradstreet,  Ex  parte,  112. 
Brady  v.  Richardson,  179. 
Brady  v.  Whitney,  39. 
Brandt  v.  Trimmer,  222,  228. 
Braun  v.  Craven,  137. 
Bray  v.  Freeman,  381. 
Breck  v.  Blanchard,  301,  45a 
Brent  v.  Shook,  390. 
Bret  v.  Audar,  422. 
Brewer  v.  Jacobs,  229. 
Brewster  v.  Hall.  478. 
Brewster  &  Bostwick  v.  Hall,  478. 
Bridges  v.  North  London  R.  Co.,  426. 
Bridges  v.  Stephens,  241. 
Briggs  v.  Bergeu,  479. 
Briggs  v.  Dorr,  322. 
Briggs  v.  Snegham,  241. 
Brine  v.  Gt.  West.  Ry.  Co.,  453,  458. 
Brinkerhoff  v.  Brown,  54 
Brinkman  v.  Hunter,  362. 
Brinson  v.  Faircloth,  229. 
Briston  v.  Wright,  432,  463,  464 
Brockway  v.  Kinney,  218. 
Bronson  v.  People,  229. 
Bronson  v.  Schulten,  246. 
Brooks  v.  Dutcher,  229. 
Brooks  v.  Somerville,  386. 
Broome  Co.  Bank  v.  Lewis,  479. 
Brown's  Case,  397. 
Brown  v.  Artcher,  265,  312. 
Brown  v.  Autrey,  229. 
Brown  v.  Bridges,  118. 
Brown  v.  C.,  M.  &  St.  P.  Ry.  Co.,  94 
Brown  v.  Cornish,  449. 
Brown  v.  Harmon,  383. 
Brown  v.  Illius,  137. 
Brown  v.  Kendall,  129. 
Brown  v.  Key  &  Jones,  193. 


XXIV 


TABLE    OF    CASES. 


References  are  to  pages. 


Brown  v.  Moore,  432. 

Brown  v.  Perry,  133. 

Brown  v.  Porter,  478. 

Brown  v.  Smith,  468. 

Browne  v.  Knill,  220. 

Bryan  v.  Buford,  346. 

Bryant  v.  Johnson,  249. 

Buck  v.  Colbath,  138. 

Buck  v.  Hughes,  229. 

Buckles  v.  Harlan,  182. 

Buckley  v.  Duff,  231. 

Buckley  v.  Kenyon,  266. 

Buckley  v.  Rice,  390,  425,  426,  443. 

Buell  v.  Lake,  251. 

Buhl  v.  Trowbridge,  220. 

Buhler  v.  Wentworth,  369. 

Bullis  v.  Giddins,  280. 

Burr  v.  Baldwin,  454. 

Burchard  v.  Record,  179. 

Burgwin  v.  Babcock,  286. 

Burhans  v.  Sani'ord,  171. 

Burlay  v.  German  Am.  Bank,  279. 

Burrage  v.  Melson,  138,  139. 

Burst  v.  Wayne,  468. 

Burstall  v.  Beyfus,  493,  495. 

Burtch  v.  Nickerson,  167. 

Burton  v.  Webb,  419. 

Bush  v.  Dunham,  432. 

Busick  v.  State,  229. 

Butchers'  &  D.  Bank  v.  Jacobson, 

479. 

Butler  v.  Birkey,  373. 
Butrick  v.  Tilton,  120. 
Butt's  Case,  431,  432. 
Byxbie  v.  Wood,  40. 
Cabell  v.  Vaughan,  48,  60,  61,  63. 
Cahill  v.  Palmer,  46a 
Cains  v.  Fisher,  241. 
Caldwell  v.  Fenwick,  127. 
Caldwell  v.  Heitshu,  109. 
Calfe  v.  Nevil,  351. 
Calumet  Co.  v.  Mabie,  296. 
Calvin's  Case,  374,  382. 
Cameron  v.  Reynolds,  274. 
Camp  v.  Bennett,  249. 
Campau  v.  Betnis,  135. 
Campau  v.  Campau,  142. 
Campbell  v.  Bannister,  331. 
Campbell  v.  Cook,  468. 
Campbell  v.  Cross,  416. 
Campbell  v.  Lewis,  271. 


Campbell  v.  Mason,  481. 

Campbell  v.  Sherman,  219. 

Campbell  v.  Taylor,  463. 

Canavan  v.  Gray,  115. 

Cannon  v.  Lindsey,  464. 

Capen  v.  Barrows,  42. 

Carew  v.  Matthews,  472. 

Carleton  v.  Gate,  131. 

Carlton  v.  Lovejoy.  135. 

Carlisle  v.  Trears,  384. 

Carpenter  v.  First  Nat.  Bank,  219. 

Carrick  v.  Blagrave,  341. 

Carroll  v.  Greene,  93,  131. 

Carter  v.  Antrim,  167. 

Carter  v.  S.  Ry.  Co.,  45.  46. 

Carter  v.  White,  133. 

Case  v.  Barber,  430. 

Case  v.  Carroll,  416. 

Case  v.  Humphrey,  416,  433. 

Casseres  v.  Bell,  415. 

Castle  v.  Bullard,  107,  384. 

Castro  v.  Wetmore,  340. 

Castro  v.  Whitlock,  411. 

Castro  v.  Tewksbury,  116. 

Caulfield  v.  Sanders,  340. 

Central  Bridge  v.  Abbot,  88. 

Central  Nat.  Bank  v.  Thein,  479. 

Central  R.  Co.  v.  Swearingen,  229. 

Central  Tr.  Co.  v.  Pullman  P.  C.  Co., 

384. 

Chamberlain  v.  Greenfield,  388,  428. 
Chambers  v.  Baldwin,  136. 
Chambers  v.  Chalmers,  12. 
Chamblee  v.  McKenzie,  389. 
Chandler  v.  Lincoln,  265,  282,  285. 
Chandler  v.  Roberts,  439. 
Chanjdler  v.  Spear,  130. 
Chandler  v.  Thompson,  229. 
Chapman  v.  Pickersgill,  416,  417. 
Chapman  v.  Smith,  275. 
Charlwood  v.  Morgan,  211. 
Chase  v.  Deming,  238. 
Chase  v.  Hazelton,  118. 
Chasemore  v.  Richards,  137. 
Chatland  v.  Thornly,  445. 
Cheasley  v.  Marsh,  330. 
Chestnut  v.  Tyson,  420. 
Chicago  v.  Cameron,  481. 
Chicago  City  Ry.  Co.  v.  Jennings,  175. 
Chicago  City  Ry.  Co.  v.  McMahon, 

230. 


TABLE   OF   CASES. 


XXV 


References  are  to  pages. 


Chicago,  etc.  Ry.  Co.  v.  Wolcott,  417. 
C.  &  A.  Ry.  Co.  v.  Adler,  224. 
C.,  B.  &  Q.  Ry.  Co.  v.  Jones,  104,  533. 
C.,  B.  &  Q.  Ry.  Co.  v.  Wingler,  149. 
C.,  H.  &  I.  Ry.  Co.  v.  Eaton,  94. 
C.,  M.  &  St  P.  R  Co.  v.  Hoyt,  126. 
C.  &  N.  W.  Ry.  Co.  v.  Dunleavy,  224, 

225,  226. 

C.  &  N.  W.  Ry.  Co.  v.  Jenkins,  445. 
C.  &  N.  W.  Ry.  Co.  v.  Nichols.  59. 
C.  &  P.  Ry.  Co.  v.  Stein,  533. 
C.,  R  L  &  P.  Ry.  Co.  v.  Todd,  62. 
C.  &  R.  L  Ry.  Co.  v.  Ward,  240. 
C.  W.  D.  R.  Co.  v.  Hughes,  229. 
C.  W.  D.  R  Co.  v.  Ingraham,  356. 
C.  W.  D.  R  Co.  v.  Klauber,  22& 
Childress  v.  Emory,  128,  183. 
Childs  v.  Wescott,  399. 
Chiniquy  v.  Bishop,  185. 
Chipman  v.  Palmer,  356. 
Chirac  v.  Reinicker,  183,  184. 
Chisholm  v.  Georgia,  34. 
Chitty  v.  Hume,  369. 
Chitwind  v.  Marnell,  203. 
Christian  v.  Williams,  178. 
Church  v.  Brownwick,  417,  418,  419, 

420. 

Church  v.  Oilman,  409,  438. 
Church  v.  Imperial  Gas  Light  Co.,  42. 
Cilley  v.  Bartlett,  230. 
City  of  Chicago  v.  Robbins,  202. 
Claflin  v.  Meyer,  386. 
Clark  v.  Cable,  47,  48,  50. 
Clark  v.  Dillon,  432. 
Clark  v.  Downing,  289. 
Clark  v.  Lake,  228. 
Clark  v.  Lineberger,  409. 
Clarke  v.  Diggs,  142. 
Clarkson  v.  Lawson,  322. 
Clason  v.  Parish,  277. 
Clay  F.  &  M.  Ins.  Co.  v.  Wusterhau- 

sen,  309,  339. 

Clayton  v.  C.  &  D.  Ry.  Co.,  202. 
Clean  v.  Jones,  385. 
Clears  v.  Stevens,  231.  232. 
Clearwater  v.  Meredith,  259,  288,  321, 

348,  353. 

Clement  v.  Flight,  310. 
Cleveland  v.  City  of  Bangor,  63. 
Clinton  v.  Howard,  416. 


Clinton  v.  Morton,  368. 

Close  v.  Samm,  201. 

Clydesdale  Bank  v.  Paton,  81. 

Coal  Co.  v.  Peers,  357. 

Coal  Co.  v.  Sanitarium  Co.,  435. 

Coare  v.  Giblett,  220. 

Coe  v.  English,  132. 

Gofer  v.  Schening,  391. 

Cogshall  v.  Beasley,  64. 

Cohee  v.  Baer,  76. 

Cohens  v.  Virginia,  240. 

Colborne  v.  Stockdale,  342. 

Colby  v.  Reynolds,  167. 

Cole  v.  Diskell,  280. 

Cole  v.  Eastham,  119. 

Cole  v.  Reynolds,  23. 

Coleman  v.  Huyler,  43. 

Coles  v.  Carter,  282. 

Coles  v.  Soulsby,  470. 

Collett  v.  Bailiffs,  409. 

Collett  v.  Keath,  262,  405. 

Collins  v.  Ballou,  121. 

Collins  v.  Beatty,  130. 

Collins  v.  Hayti,  170,  171. 

Collins  v.  Riley,  226. 

Colt  v.  Bishof,  265. 

Colthirst  v.  Bejushin,  434 

Colton  v.  Goodridge,  205. 

Columbus,  P.  &  L  R  Co.  v.  Simpson, 

252! 

Combs  v.  Steele,  13& 
Com.  v.  Hinds,  230. 
Com.  v.  Justices,  229. 
Com.  Nat.  Bank  v.  Cannif,  217. 
Com.  Ins.  Co.  v.  Bank,  230. 
Com.  of  Marion  Co.  v.  Clark,  386. 
Compton  v.  People,  230,  270. 
Comstock  v.  McEvoy,  351. 
Comstock  v.  Odorman,  282. 
Conger  v.  Cropsey,  430. 
Conger  v.  Johnson,  265.  312. 
Conkey  v.  Kingman,  183. 
Connell's  Ex'rs  v.  C.  &  O.  Ry.  Co., 

173,  174 
Connelly  v.  Peirce,  346. 

bnner  v.  Giles,  386. 
Constantin  v.  Foster,  282,  285. 

lontinental  Ins.  Co.  v.  Rogers,  441. 
Cook  v.  Cox,  442. 
ook  v.  First  Nat  Bank,  90. 


XXVI 


TABLE    OF    CASES. 


Keferences  are  to  pages. 


Cook  v.  Graham,  268. 

Cook  v.  Rome  Brick  Co.,  267. 

Cook  v.  Scott,  28,  101,  153,  191,  255, 

286. 

Cook  v.  Warren,  156,  356,  435,  443. 
Cooke  v.  Avery,  121. 
Cooper  v.  Chitty,  131. 
Cooper  v.  Greeley,  167. 
Cooper  v.  Monke,  434. 
Cooper  v.  Reynolds,  150,  179. 
Cooper  v.  Waldron,  533. 
Cooper  v.  Watson,  127. 
Cornwallis  v.  Savery,  337,  347,  417, 

418. 

Coryton  v.  Lithebye,  53,  55,  62,  494 
Costigan  v.  Penn.  Ry.  Co.,  137. 
Cotteral  v.  Cummins,  128. 
Courtney  v.  Phelps,  300,  439. 
Cover  v.  Armstrong,  438. 
Covert  v.  Morrison,  141. 
Cox  v.  Cooper,  109. 
Cox  v.  Providence,  426. 
Coykendall  v.  Robinson,  479. 
Craft  v.  Boite,  376. 
Craft  Refrig.  Co.  v.  Quinnipiac,  104, 

ipo,  357,  497. 
Crane,  Ex  parte,  248. 
Crawford  v.  Slade,  269. 
Crawley  v.  Com..  432. 
Cregan  v.  Railroad  Co.,  92. 
Creswell  v.  Packham,  230. 
Crews  v.  Lackland,  468. 
Crispin  v.  Williamson,  389. 
Crocker  v.  Marine  Nat.  Bank,  378. 
Crockett  v.  Lashbrook,  401. 
Cromwell  v.  Sac  Co.,  34,  326,  480,  481. 
Cropsey  v.  Sweeney,  23,  155. 
Cross  v.  Barker,  109. 
Crosse  v.  Hunt,  310. 
Grossman  v.  Universal  Rubber  Co., 

90. 

Crotly  v.  Morissey,  168. 
Crowe  v.  People,  224. 
Cryps  v.  Baynton,  417,  418. 
Cudlip  v.  Rundle,  403. 
Culver  v.  Congle,  149. 
Culver  v.  Johnson,  182. 
Culver  v.  Marks,  364.  ' 
Cummings  v.  People,  61. 
Cummings  v.  Smith,  200. 


Cunningham  v.  Railway  Co.,  433. 

Cuppledick  v.  Terwhit,  350. 

Cureton  v.  Westfield,  247. 

Curtiss  v.  Martin,  365. 

Cushman  v.  Hayes,  286.  459. 

Cutforthay  v.  Taylor,  452. 

Cutler  v.  Powell,  133,  134. 

Cutler  v.  Smith,  169. 

Cutler  v.  Southern,  455. 

Dale  v.  Hunneman,  142. 

Dale  v.  Phillipson,  387. 

Dally  v.  King,  443,  444. 

Dame  v.  Dame,  127, 129. 

Damron  v.  Sweetser,  61. 

Dana  v.  Bryant,  326,  328. 

Daniels  v.  Fowler,  438. 

Daniels  v.  Hallenbeck,  438. 

Danielson  v.  Gude,  191. 

Dannenberg  v.  Guernsey,  228. 

Darling  v.  Simpson,  57. 

Dartmouth  College   v.    Woodward, 

135, 165. 

Davies  v.  Gibson,  189,  267. 
Davis  v.  Allen,  229. 
Davis  v.  Burton,  280. 
Davis  v.  Calvert,  139. 
Davis  v.  Easley,  94. 
Davis  v.  McCready,  133. 
Davis  v.  Penton,  269. 
Davis  v.  Ransom,  338. 
Davis  v.  Winship,  337. 
Davison  v.  Powell,  436. 
Day  v.  Lamb,  109. 
Dean  v.  Comstock,  130. 
Dean  v.  Notes,  220. 
Dearborn  v.  Kent,  270. 
Debow  v.  Colfax,  135. 
Delahay  v.  Clement,  177. 
D.,  L.  &  N.  Ry.  Co.  v.  McCammon, 

323. 

Dement  v.  Rokker,  60. 
Deming  v.  Foster,  218. 
Denham  v.  Stephenson,  397,  403,  426. 
Denison  v.  Richardson,  382. 
Dennison  v.  Hyde,  150. 
Denver,  etc.  Ry.  Co.  v.  Harris,  114, 

136. 

Derisby  v.  Custance,  401,  402,  426. 
Dermick  v.  Chapman,  251. 
Dermot  v.  Jones,  133. 


TABLE   OF    CASES. 


XXV11 


Eeferences  are  to  pages. 


Destley  v.  Dabney,  95. 

Detroit  Schuetzen  Bund  v.  Agita- 
tions Verein,  183. 

Dewight  v.  Merritt,  10& 

Deybel's  Case,  411. 

Deyo  v.  Mass,  533. 

Diamond  Match  Co.  v.  Roeber,  37,  39. 

Dibble  v.  Duncan,  312. 

Dicey  v.  Reed,  34. 

Dickerson  v.  Hendryx,  321. 

Dickinson  v.  C.,  B.  &  Q.  Ry.  Co.,  64, 
533. 

Dickinson  v.  Mayor,  etc.,  118. 

Dickinsheets  v.  Kauffman,  463. 

Dickson  v.  Wilkinson.  269. 

Digby  v.  Fitzharbert,  305,  337. 

Dighton  v.  Bartholomew,  231. 

Dike  v.  Ricks,  304. 

Dills  v.  Stobie,  323. 

Dils  v.  Justice,  115. 

Dinet  v.  Reilley,  60. 

Dinsmore  v.  Boyd,  249. 

Ditch  Co.  v.  Elcott,  367,  369,  432,  437. 

Dobson  v.  Campbell,  433. 

Dobson  v.  Hallowell,  479. 

Dobbs  v.  Edmunds,  441. 

Dockwray  v.  Dickinson,  60. 

Dodd  v.  Kiffin,  282. 

Dodge  v.  Spier,  142. 

Doe  v.  Penfleld,  183. 

Doe  v.  Phongman,  386. 

Donnellan  v.  Hardy,  433. 

Donnelly  v.  Burkett,  229. 

Donovan  v.  Hartford  Ry.  Co.,  107, 
153,  340,  463. 

Dormady  v.  State  Bank,  224. 

Doremus  v.  Hennessy,  137. 

Dothard  v.  Denison,  142. 

Douglas  v.  Newman,  64. 

Douglas  v.  Phoenix  Ins.  Co.,  179. 

Douglass  v.  Hennessy,  301. 

Douglass  v.  Vallop,  148. 

Doulson  v.  Mathews,  378. 

Dovan  v.  Densmore,  440. 

Dovaston  v.  Payne,  415,  432,  435. 

Dowd  v.  Guthrie,  203. 

Dowdale's  Case,  382. 

Dowland  v.  Slade,  443,  444 

Dowman's  Case,  409. 

Downs  v.  Finnegan,  89,  90. 


Dows  v.  Harper,  249. 

Drake  v.  Drake,  184,  379,  445. 

Draper  v.  Fletcher,  40. 

Draper  v.  Faulks,  135. 

Drew  v.  Spaulding,  136. 

Drueman  v.  Hurst,  451. 

Druley  v.  Adams,  36. 

Dubs  v.  Egli,  51. 

Dudlon  v.  Watchorn,  453. 

Duffield  v.  Rosenzweig,  133. 

Dufresne  v.  Hutchinson,  63. 

Duggan  v.  Wright,  310. 

Dugger  v.  Ogglesby,  474,  476. 

Duke  of  Newcastle  v.  Wright,  397, 

403. 

Dumsday  v.  Hughes,  211,  398. 
Duncan  v.  Lyons,  69,  125. 
Duncan  v.  Willis,  49,  50,  56. 
Dundas  v.  Lord  Weymouth.  463. 
Dundee  Mortg.  Co.  v.  Nixon,  823. 
Dunlap  v.  Clements,  249. 
Dunstall  v.  Dunstall,  441. 
Dunston  v.  Cowdry,  114. 
Dupree  v.  Blake,  269. 
Dupree  v.  Dupree,  118. 
Duster  v.  Cowdry,  130. 
Dutton  v.  Holden,  454. 
Duvall  v.  Craig,  184. 
Dwight  v.  Merritt,  108. 
Dwiggins  v.  Clark,  178. 
Dye  v.  Letherdale,  330. 
Dyett  v.  Pendleton,  438. 
Dyster  v.  Battye,  443,  444 
Earl  of  Kerry  v.  Baxter,  422,  423, 425. 
Earl  of  Manchester  v.  Vale,  350. 
East  v.  Cain,  472. 
East  St.  Louis  v.  O'Flynn,  35. 
Eastman  v.  Fletcher,  119. 
Eastman  v.  Manufacturing  Co.,  218. 
Easton  v.  B.,  C.  &  M.  Ry.  Co.,  51. 
Eaton  v.  Smith,  142. 
Eaton  v.  Southby,  409,  410. 
Eberhart  v.  Sanger,  147,  258. 
Ebersole  v.  First  Nat  Bank,  268,  309. 
Eccleston  v.  Clipham,  49,  60. 
Ecker  v.  Bohn,  429. 
Eden's  Case,  376. 
Eddy  v.  Davis,  138. 
Edinburgh  Ry.  Co.  v.  Hebblewhite, 

311. 


XXV111 


TABLE    OF    CASES. 


References  are  to  pages. 


Edmunds  v.  Groves,  323. 

Edwards  v.  Hill,  63. 

Eggleston  v.  Smiley,  229. 

Ehle  v.  Perdy.  CO. 

Elam  v.  Badger,  168. 

Elgin  J.  &  E.  R.  Co.  v.  Raymond, 

226. 

Ellen  wood  v.  Marietta  Chair  Co.,  379. 
Ellington  v.  Ellington,  130. 
Elliott  v.  Stevens.  109. 
Elson  v.  Comstock,  401. 
Ellsworth  v.  Learned,  280. 
Ely  v.  Yore,  116. 
Emery  v.  Fell,  155. 
Enisley  v.  Bennett,  117. 
Enys  v.  Mohim,  232. 
England  v.  Hatch,  142. 
Eno  v.  Woodworth,  155. 
Erickson  v.  Lyons,  38. 
Essengton  v.  Boncher,  350. 
Estabrook  v.  Messersmith,  47. 
Etheridge  v.  Osborn,  322. 
Evans  v.  Collier,  432. 
Evans  v.  Evans,  113. 
Evans  v.  Stevens,  472. 
Evans  v.  St.  L.,  I.  M.  &  S.  Ry.  Co.,  94. 
Evansville  Ry.  Co.  v.  Cochran,  201. 
Everett  v.  De  Groff,  194. 
Everett  v.  Gray,  134. 
Ewell  v.  Dagg.  33. 
Ewing  v.  Railway  Co.,  137. 
Ewing  v.  Shaw,  346. 
Executors  of  Grenelife,  351,  352. 
Pabbicotti  v.  Launitz,  479. 
Faget  v.  Brayton,  139. 
Fain  v.  Crawford,  180. 
Fairfax  v.  Lewis,  Adm'r,  346. 
Faix  v.  Barnes,  235. 
Fant  v.  McDaniel,  171. 
Farmington  v.  Pillsbury,  180. 
Farnan  v.  Childs,  169,  369. 
Farncomb  v.  Stern,  117. 
Farwell  v.  Gt.  W.  Ry.  Co.,  481. 
Farwell  v.  Warner,  171. 
Faulkland  v.  Hanson,  181. 
Fawsett  v.  Osborn,  135. 
Fay  v.  Cobb,  479. 
Feads  v.  Albea,  229. 
Feagin  v.  Pearson,  199. 
Fears  v.  Merrill,  142. 


Fellows  v.  Fellows,  47,  54 

Fenn  v.  Holme,  142. 

Fent  v.  T.  P.  &  W.  Ry.  Co.,  224. 

Ferguson  v.  Meredith,  268. 

Ferguson  v.  State,  108,  411. 

Ferrall  v.  Bradford,  451. 

Fidler  v.  Delavan,  409. 

Field  v.  Crawford,  217. 

Finch  v.  Alston,  282. 

Fink  v.  Campbell,  71. 

Finny  v.  Smith,  169. 

Fish  v.  Cleveland,  30a 

Fish  v.  Farwell,  363. 

Fish  v.  Redington,  435. 

Fisk  v.  Tank,  220,  357,  364. 

Fisher  v.  Pimbley,  455. 

Fitzpatrick  v.  Fitzpatrick,  199. 

Flanders  v.  Cobb,  533. 

Fleischman  v.  Bennett,  431. 

Fleming  v.  Patterson,  1 08. 

Flemming  v.  Hoboken,  322. 

Fletcher  v.  Peck,  126,  437. 

Fletcher  v.  Pogson,  271. 

Fletcher  v.  Ryland,  136. 

Fletcher  v.  Tuttle,  34. 

Flint  v.  Hill,  202. 

Flood  v.  Jackson,  36,  137. 

Flood  v.  Randall,  45. 

Florida  R.  Co.  v.  Smith,  247. 

Floyd  v.  Ricks,  282,  401. 

Foley  v.  Hill,  322. 

Fordyce  v.  Hathorn,  178. 

Forrest  v.  Butler,  437. 

Forster  v.  Lawson,  494 

Forsythe  v.  Wells,  165. 

Fort  Dearborn  Lodge  v.  Klein,  114, 

116,  268,  269,  270,  316,  401. 
Fory  v.  Bennett,  416. 
Foster  v.  Jackson,  268. 
Foster's  Will,  219. 
Fowler  v.  Bowen,  167. 
Fox  v.  Hazelton,  229. 
Fox  v.  Minor,  44. 
Fox  v.  Pricket,  139. 
Fox  v.  Witham,  249. 
Fraedrich  v.  Flieth,  201. 
Franklin  v.  Talmadge,  185. 
Franks  v.  Morris,  330,  383. 
Frazier  v.  Ga.  etc.  Co.,  92,  104 
Frazier  v.  Howe,  385. 


TABLE   OF    CASES. 


XXIX 


References  are  to  pages. 


Friedland  v.  McNeil,  248. 

Fritz  v.  Frustone,  283. 

Fritz  v.  Hathaway,  98. 

Frost  v.  Duncan,  23. 

Frost  v.  Harford,  479. 

Fry  v.  Bennett,  169.  219 

Fuller  v.  Harris,  229. 

Fulliam  v.  Harris,  113. 

Fulmerston  v.  Stunard,  434,  456. 

Fussell  v.  Gregg,  142. 

Gaffney  v.  Colwell,  353. 

Gage  v.  Ewing,  148. 

Gainsford  v.  Griffith,  423. 

Gainsville  v.  Caldwell,  228. 

Galbraith  v.  Green,  248. 

Gale  v.  Nixon,  126. 

Gale  v.  Read,  426.  427. 

Galena  &  S.  W.  Ry.  Co.  v.  Hasla  n, 

201. 

Galton  v.  Harvey.  234. 
Gal.,  H.  &  S.  A.  Ry.  Co.  v.  Kening, 

409. 

Gammon  v.  Ruffin,  219. 
Gardner  v.  Buckbee,  279,  283. 
Gardner  v.  Clark,  177. 
Gardner  v.  Jones,  143. 
Gardner  v.  Ogden,  26,  47,  177,  356. 
Gardner  v.  Sharp,  141. 
Garland  v.  Davis,  252,  348. 
Garland  v.  Tonn,  136. 
Garrett  v.  Handley,  50. 
Garrity  v.  Hamburger,  126. 
Gates  v.  Bushnell.  109. 
Gatton  v.  Dimmett,  204 
Gautzert  v.  Hoge,  42. 
Gay  v.  De  Werff ,  23. 
Gay  v.  Lloyd,  280. 
Gayle  v.  Belts,  332. 
Gazley  v.  Price,  335. 
General  Mut.  Ins.  Co.  v.  Benson,  42. 
Generes  v.  Campbell,  246,  247. 
Ger.  Am.  T.  T.  Co.  v.  Shallcross,  96c7. 
German  Bank  v.  Meadowcroft.  136. 
Germania  Ins.  Co.  v.  Leiberman,  386. 
Gerrish  v.  Trein,  288. 
Gibbs  v.  Davies,  416. 
Gibson  v.  Bailey,  119. 
Gibson  v.  Bourland,  445,  448. 
Gibson  v.  Leonard,  35. 
Gibson  v.  Webster,  230. 
Gibson  v.  Williams,  168. 


Giddings  v.  Land  &  Water  Co.,  115. 

Giddings  v.  Steele,  249. 

Griffith  v.  Hillard,  117. 

Gifford  v.  Perkins,  460. 

Gilbert  v.  Loberg,  356. 

Gilbert  v.  Parker,  311. 

Gillespie  v.  Smith,  194,  33a 

Gilman  v.  Lowell,  169. 

Gihner  v.  Bird.  108. 

Gilmer  v.  Eubank,  167. 

Gilmore  v.  Brost,  229. 

Gilmore  v.  Nowland,  368. 

Girli  v.  Poidebard  Silk  Mfg.  Co.,  12& 

Glasscock  v.  Morgan,  271. 

Gleason  v.  Edmunds,  350. 

Gleason  v.  Peck,  249. 

Gledstane  v.  Hewitt,  458. 

Glencoe  Gravel  Co.  v.  Hudson  Bros., 

137. 

Glenn  v.  Garrison,  135. 
Glenn  v.  Sumner,  323. 
Glover  v.  Flowers,  228. 
Gluck  v.  Cox,  139. 
Godfriedson  v.  People,  221. 
Godson  v.  Good,  451. 
Goff  v.  Toledo,  432,  463. 
Goforth  v.  State,  247. 
Goggin  v.  O'Donnell,  238. 
Good  hue  v.  Luce,  183. 
Goodrich  v.  Reynolds,  321. 
Goodtitle  v.  Otway,  386. 
Goram  v.  Sweeting,  343. 
Gordon  v.  Goodell,  384 
Gordon  v.  People,  219. 
Gorman  v.  Judge,  363. 
Gort  v.  Rowney,  46,  495. 
Gostorfs  v.  Taafe,  479. 
Gould  v.  Baker,  85,  87. 
Gould  v.  Smith,  182. 
Gourney  v.  Fletcher,  441. 
Governor  v.  Logan.  286. 
Graham  v.  Meyer,  126. 
Graham  v.  Peat,  130. 
Graham  v.  St.   Charles  Ry.  Co.,  36, 

137. 

Granger  v.  Circuit  Judge,  182. 
Grannis  v.  Hooker,  435,  441. 
Grant  v.  Bell,  409. 
Gratz  v.  Phillips,  125. 

raves  v.  Colwell.  219; 

ray  v.  Parker,  139. 


XXX 


TABLE    OF   CASES. 


References  are  to  pages. 


Gray  v.  People,  231. 
Gray  v.  Tobias,  356, 
Gray  v.  Wilson,  57,  58. 
Grayson  v.  Buchanan,  340. 
Great  W.  Ry.  Co.  v.  McComas,  45, 46. 
Greeley  v.  Spratt,  116. 
Green  v.  Coviland,  432. 
Green  v.  Palmer,  409. 
Greene  v.  Jones,  330. 
Greene  v.  Lewis,  127. 
Greene  v.  Tacoma,  180. 
Greening  v.  Bishop,  385. 
Greer  v.  Young,  182,  237,  251. 
•Gregory  v.  Wright,  389. 
Gridley  v.  City  of  Bloomington,  463. 
Grievewood  v.  Barrett,  385. 
Griffin  v.  Farrell,  131. 
Griffin  v.  Larned,  221. 
Griffith  v.  Crockford,  33a 
Griffiths  v.  Lyles,  440. 
Grills  v.  Mannell,  370. 
Grocers'  Co.  v.  Archbishop  of  Can- 
terbury, 309. 
Groll  v.  Tower,  385. 
Gross  v.  Sloan,  218. 
Groves  v.  Bailey,  218. 
Gruber  v.  Baker,  37,  3a 
Grumon  v.  Raymond,  179. 
Guardian  Ins.  Co.  v.  Hogan,  43. 
Guilford  v.  Adams,  533. 
Guille  v.  Swan,  128. 
Gulley  v.  Macy,  430. 
Gundry  v.  Feltham,  267. 
Gunstead  v.  Marlow,  430. 
Gurney  v.  Tufts,  179. 
Hagerty  v.  Andrews,  463. 
Hahn  v.  Ritter,  282,  286. 
Haines  v.  People,  246. 
Hairecht  v.  Pemberton,  59. 
Haiton  v.  Jeffreys,  189. 
Hale  v.  Finch,  420. 
Haley  v.  Rowan,  127. 
Hall  v.  Durham,  138. 
Hall  v.  Gray,  59. 
Hall  v.  Lyons,  229. 
Hall  v.  Railway  Co.,  434 
Hall  v.  Robinson,  89. 
Hall  v.  Williams,  280. 
Halleck  v.  Mixer,  390. 
Hallett  v.  Byrt,  312,  430. 
Hallowes  v.  Lucy,  448. 


Halsey  v.  Carpenter,  382. 
Ham  brick  v.  Wilkins,  99. 
Hamden  v.  Merwin,  468. 
Hamilton  v.  Pease,  230. 
Hamilton  v.  Smith,  351. 
Hammond  v.  Dodd,  435. 
Hampson  v.  Hill,  469,  471. 
Hancock  v.  McAvoy,  143. 
Hanford  v.  Palmer,  415. 
Hannah  v.  McKenzie,  280. 
Hannay  v.  Smurthwaite,  50,  52,  54, 

56, 103, 105,  357,  49& 
Hannen  v.  Edes,  289,  330. 
Hans  v.  Louisiana,  34. 
Hapgood  v.  Houghton,  337. 
Harden  v.  Forsyth,  223. 
Hardman  v.  Clegg,  234. 
Hardy  v.  Beaty,  121. 
Hardy  v.  Cathcart,  385. 
Hargrave  v.  Lewis,  57. 
Barker  v.  Brink,  353. 
Harkness  v.  Hyde,  180. 
Harlone  v.  Wright,  435. 
Harms  v.  Steer,  94. 
Harper  v.  Milwaukee,  220. 
Harpur's  Case,  386. 
Harris  v.  Beard,  271. 
Harris  v.  Brain,  71. 
Harris  v.  Hillman,  127. 
Harris  v.  Miner,  282. 
Harris  v.  Miller,  282. 
Harris  v.  Prett,  422. 
Harris  V.  People,  247. 
Harris  v.  Shebeck,  533. 
Harris  v.  Swanson,  49,  50,  57,  58. 
Harris  Photographic  Supply  Co.  v. 

Fisher,  429. 

Harrison  v.  Barnby,  49. 
Harrop  v.  Hirst,  36. 
Hart  v.  Lindsey,  185. 
Hart  v.  Longfield,  347,  3G5 
Hart  v.  Moulton,  480,  481. 
Hart  v.  Sansom,  26. 
Hart  v.  Ten  Eyck.  323. 
Hartford  v.  Holmes,  101. 
Hartford  v.  Jones,  164. 
Hartnell  v.  Hemmenway,  333. 
Hartog  v.  Memory,  180. 
Hartshorn  v.  S.  Reading,  35. 
Harvey  v.  Iliethorpe,  219. 
Harvey  v.  Van  de  Mark,  248. 


TABLE    OF   CASES. 


XXXI 


References  are  to  pages. 


Hascott  v.  Alcott,  62. 
Haskins  v.  Alcott,  430. 
Hastrop  v.  Hastings,  269. 
Hatch  v.  Spofford,  182. 
Hathaway  v.  Tinkham,  247, 
Hatton  v.  Morse,  312,  316. 
Hauselman  v.  Kegel,  139. 
Havelock  v.  Rock  wood,  258. 
Havens  v.  H.  &  N.  H.  Ry.  Co.,  340. 
Hawe  v.  Planner,  386. 
Hawkins  v.  Bowie,  248,  249. 
Hawkins  v.  Sechs,  394. 
Hawley  v.  Burd,  125. 
Hawley  v.  Clewes,  118. 
Ha  worth  v.  Spraggs,  472. 
"  Hayman  v.  Gerrard,  337. 
Haynes  v.  Onderdonk,  109. 
Hays  v.  Bryant,  421. 
Hays  v.  Lasater,  49,  57. 
Hayward  v.  Grant,  479. 
Hayward  v.  Knapp,  229. 
Hazen  v.  Lundy,  194. 
Hazen  v.  Pierson,  338. 
Heacock  v.  Hosmer,  2. 
Headley  v.  Shaw,  185. 
Heady  v.  Vevay  Turnpike  Co.,  201. 
Heath  v.  Frackleton,  308. 
Heeser  v.  Miller,  431. 
Heine  v.  Morrison,  228. 
Helier  v.  Whytier,  305. 
Helliott  v.  Selby,  467. 
Helmuth  v.  Bell,  271,  274 
Henderson  v.  Withy,  335. 
Hendrickson  v.  Hutchinson,  199. 
Hendy  v.  Stephenson,  396. 
Henke  v.  Eureka  Endowment  Ass'n, 

446,  429. 

Henkel  v.  Heyman,  432. 
Hennakir  v.  Turner,  49. 
Kennies  v.  Vogel,  61. 
Henricus  v.  Englert,  42. 
Henry  v.  Porter,  200. 
Henry  v.  Sowles,  135,  164 
Henshall  v.  Roberts,  390. 
Hensley  v.  Peck,  384. 
Herbert  v.  Shaw,  229. 
Hereford  v.  Crow,  351. 
Herf  v.  Shultze,  390. 
Hermann  v.  Port  B.  M.  Co.,  379, 
Herod  v.  Snyder,  200. 
c 


Herreshoff  v.  Tripp,  143. 

Herrick  v.  Gary,  228. 

Herrick  v.  Lindsay,  43. 

Herring  v.  Blacklow,  300,  439. 

Hessing  v.  Attorney-General,  247. 

Hewett  v.  Brown,  431. 

Heyden  v.  Thompson,  341. 

Heyman  v.  Covell,  472. 

Hibbard  v.  McKindley,  357. 

Hickman  v.  Walker,  454 

Hickok  v.  Coates,  322. 

Hicks  v.  Braunton,  60. 

Hicks  v.  Lovell,  143. 

Hieronyraous  v.  N.  Y.  Nat  B.  &  L. 

Ass'n,  441. 

Higbie  v.  Comstock,  248. 
Higgins  v.  Highfield,  386. 
Higgins  v.  Wiseman,  417,  418. 
Hill  v.  Barrett,  23,  156,  443. 
Hill  v.  McCarthy,  14. 
Hill  v.  Montagu,  406,  417. 
Hill  v.  Snell,  135. 
Hillman  v.  Chester,  246. 
Hinkle  v.  Davenport,  64 
Hinton  v.  Roffey,  406. 
Hitchcock  v.  Haight,  231. 
Hoadley  v.  Watson,  169. 
Hoag  v.  Peirce,  115. 
Hobbs  v.  London  &  S.  W.  Ry.  Co.,  94 
Hochster  v.  De  La  Tour,  95,  123. 
Hodgkins  v.  Jordan,  116. 
Hoener  v.  Koch,  228. 
Hogan  v.  Gushing,  386. 
Hoggens  v.  Gordon,  53. 
Hohorst    v.    Hamburg- American 

Packet  Co.,  150. 

Holder  v.  Aultman,  372,  377,  382. 
Holland  v.  Shelby,  475. 
Holland  v.  Wedd,  59. 
Hollens  worth  v.  Koon,  248. 
Holler  v.  Bush,  312,  459,  460,  462. 
Holler  v.  Coleson,  139. 
Hollingsworth  v.  Holshausen,  441. 
Holmes  v.  C.  &  A.  Ry.  Co.,  267,385. 
Holmes  v.  Catesby,  262. 
Holmes  v.  Jones,  323. 
Holmes  v.  Preston,  533. 
Holmes  v.  Wood,  139. 
Hood  v.  Inman,  13,  20. 
Hopkins  v.  Burney,  139. 


XXX11 


TABLE   OF    CASES. 


References  are  to  pages. 


Hopkins  v.  Medley,  193,  265,  321,  322, 

341,  851,  361. 
Hore  v.  Chapman,  441. 
Home  v.  Carter's  Adm'r,  143. 
Home  v.  Lewin,  301. 
Home  v.  Sullivan,  468. 
Horsefall  v.  Testar,  220. 
Hosford  v.  Kanouse,  42. 
Hosley  v.  Black,  441. 
Hotham  v.  East  India  Co.,  413,  414 
Hough  v.  Hammond,  120. 
House  v.  Alexander,  247. 
House  v.  Keiser,  116. 
House  v.  Wilder.  385. 
Howard  v.  Glenn,  323. 
Howe  v.  Harroun,  384. 
Howell  v.  Caryll,  129. 
Howland  v.  Davis,  383. 
Howsman  v.  Trenton  Water  Co.,  34. 
Hubbell  v.  Wheeler,  130, 131, 289,  330, 

331. 

Hubler  v.  Pullen,  194 
Huddleston  v.  Huey,  12& 
Hudson  v.  Jones,  322. 
Hudspeth  v.  Herston,  229. 
Hughes  v.  Phelps,  304 
Hughes  v.  Union  Ins.  Co.,  123. 
Hughes  v.  Wheeler,  433. 
Hull  v.  Blake,  211. 
Humphrey  v.  Bethily,  270,  346,  347. 
Humphrey  v.  Churchman,  348. 
Humphries  v.  Dawson,  182. 
Hunt  v.  Pratt,  131. 
Hunter  v.  Bilyeu,  269,  270,  370. 
Hunter  v.  Hatton,  282. 
Huntington  &  Broad  Top  Mount.  Co. 

v.  Decker,  228. 
Hurst  v.  Cook,  165. 
Hussey  v.  Jacob,  462. 
Hutchins  v.  Hutchins,  36. 
Hutchinson  v.  Brock,  181,  184. 
Hutchinson  v.  Consumers'  Coal  Co., 

230. 

Hutchinson  v.  Dubois,  219. 
Hutchinson  v.  Jackson,  431. 
Hutchinson  v.  Perley,  142. 
Hutchinson  v.  Piper,  391. 
Hyatt  v.  McMahon,  409. 
Hyatt  v.  Wood,  114,  130. 
Hylton  v.  Guyot,  480. 


I'Anson  v.  Stuart.  406,  407,  417. 

Ilderton  v.  Ilderton,  215,  372. 

Illinois  Cent.  Ry.  Co.  v.  Johnson,  251, 
286. 

Illinois  Cent.  Ry.  Co.  v.  Wheeler,  222. 

Illinois  Fire  Ins.  Co.  v.  Stanton,  268. 

Illinois  Linen  Co.  v.  Hough,  228. 

Ind.,  B.  &  W.  Ry.  Co.  v.  Adamson, 
47,  50. 

Ind.  Order  v.  Paine,  230. 

Ingraham  v.  Edwards,  405. 

Insurance  Co.  v.  Judge,  97. 

Ipswitch  v.  Fernandez,  229. 

Iron  Mountain  &  H.  R.  R.  Co.  v.  John- 
son, 115,  116. 

Isaacs  v.  Holland,  432. 

Israel  v.  Reynolds,  194,  218. 

Irwin  v.  Miller,  229. 

J'Anson  v.  Stuart  (see  Anson  v.  Stu- 
art). 

Jacks  v.  Stimpson,  171. 

Jackson  v.  Alexander,  390. 

Jackson  v.  Hobson,  251. 

Jackson  v.  Parkhurst,  141. 

Jackson  v.  Peshed,  271,  272. 

Jackson  v.  Stetson,  251,  365. 

Jackson  v.  Stanfield,  35. 

Jackson  v.  Warford,  219. 

J.,  M.  &  L  Ry.  Co.  v.  Dunlap,  176. 

Jacobs  v.  Nelson,  435. 

Jacobson  v.  Miller,  34, 148,  480,  481. 

Jaeger  v.  Hartman,  416. 

James  v.  Dunlap,  351. 

Jameson  v.  Isaacs,  185. 

Jamison  v.  Colburn,  57. 

Jamison  v.  Graham,  115. 

Jansen  v.  Ostrander,  281. 

Jansen  v.  Railway  Co.,  362. 

Jaques  Case,  460. 

Jedmy  v.  Jenny,  409,  417. 

Jefferies  v.  Robbins,  97. 

Jefferson  v.  Morton,  232. 

Jeffrey  v.  Fitch,  249. 

Jeffries  v.  Randall,  229. 

Jele  v.  Lemberger,  323,  416. 

Jenkins  v.  Bennett,  92. 

Jenner  v.  Joliffe,  135. 

Jerome  v.  Ross,  117. 

Jessel  v.  Insurance  Co.,  37. 

Jevens  v.  Hanidge,  204,  205. 


TABLE   OF   CASES. 


XXX111 


References  are  to  pages. 


Jewell  v.  Jewell,  229. 

Joannes  v.  Bent,  167. 

Johns  v.  Whitley,  349,  396. 

Johnson  v.  Bailey,  240. 

Johnson  v.  Farwell,  109. 

Johnson  v.  Hunter,  224. 

Johnson  v.  Maxon,  170. 

Johnson  v.  Moss,  385. 

Johnson  v.  Neville,  141. 

Johnson  v.  Picket.  385. 

Johnson  Co.  v.  Mo.  Pac.  Ry.  Co.,  90. 

Johnston  v.  Hamburger,  108. 

Johnston  v.  Sutton,  271. 

"Jones  v.  Andrews,  416. 

Jones  v.  Baker,  137. 

Jones  v.  Billstein,  142. 

Jones  v.  Bodinner,  231. 

Jones  v.  Greaves,  219. 

Jones  v.  Louderman,  442. 

Jordan  v.  Wyatt,  131. 

Josselyn  v.  McAllister,  169,  170. 

Judge  of  Probate  v.  Merrill,  203,  204. 

Judin  v.  Samuel,  452. 

Judkins  v.  Union  M.  Ins.  Co.,  281. 

Kamphouse  v.  Gaffner,  228. 

Kane  v.  Paul,  183. 

Kane  v.  Sanger,  286. 

Kanhouse  v.  Lexington,  308. 

K.  C.,  M.  &  B.  Ry.  Co.  v.  Phillips,  411. 

Kansas  City  Ry.  Co.  v.  Saunders,  239. 

Katz  v.  Moessinger,  463. 

Keag  v.  Goodwin,  458. 

Keedy  v.  Long,  278. 

Keegan  v.  Kinnare,  271. 

Keely  v.  Long,  90,  95. 

Keener  v.  Finger,  11,  339. 

Kelley  v.  Jay,  61. 

Kellogg  v.  Groves,  117. 

Kellogg  v.  Larkin,  268,  309. 

Kelly  v.  Hendricks,  385. 

Kelly  v.  Mack,  228. 

Kelsea  v.  Ramsey  et  al.,  45. 

Kelton  v.  Bevins,  170. 

Kemp  v.  McCormick,  390. 

Kenicot  v.  Bogan,  308. 

Kennedy  v.  Campbell,  120. 

Kent  v.  Mason,  219. 

Kent  v.  Miles,  268. 

Kenyon  v.  Sutherland,  445. 

Kerfoot  v.  People,  34,  35. 

Kernsteller  v.  Raymond,  134 


Kerr  v.  Topping,  465. 

Kerr  v.  Willetts,  182. 

Kerstetter  v.  Raymond,  44t 

Keyworth  v.  Hill,  291. 

Kimball  v.  Harmon,  35,  36. 

Kincaid  v.  Howe,  185. 

King  v.  Bell,  470. 

King  v.  Bolton,  305. 

King  v.  C.,  M.  &  St.  P.  Ry.  Co.,  104, 
105,  175,  176. 

King  v.  Fraser,  443. 

King  v.  Hutchins,  185. 

King  v.  Merritt,  113. 

King  v.  Ramsey,  281. 

King  v.  Roxborough,  382. 

King  v.  Shakspeare,  188,  450. 

King  v.  Ward,  171. 

Kingston's  Case,  480. 

Kinnersley  v.  Cooper,  341. 

Kinsley  v.  Coyle,  225,  226. 

Kipp  v.  Bell,  267,  346,  34a 

Kirby  v.  Johnson,  109. 

Kirk  v.  Hamilton,  143. 

Kline  v.  Wynne,  248. 

Klink  v.  Cohen,  431. 

Kneidler  v.  Sternberg,  322. 

Knickerbocker  Life  Ins.  Co.  v.  Bar- 
ker, 280. 

Knight  v.  Farnsby,  379. 

Knight  v.  Freepcrt,  229. 

Knight  v.  Symms,  386,  387. 

Knight  T.  &  M.  Life  Co.  v.  Garett, 
36. 63. 

Knightly  v.  Watson,  49. 

Knutson  v.  Knapp,  95. 

Koch  v.  Roth,  212. 

Kohn  v.  Hinshaw,  432. 

Kribbs  v.  Downing,  142. 

Labaugh  v.  Cantine,  332,  333. 

Labro  v.  Campbell,  117. 

Lacy  v.  Reynolds,  231. 

Ladd  v.  Ramsby,  440. 

Ladew  v.  Ladew,  383. 

Lafayette,  R  &  M.  R  Co.  v.  Win- 
slow,  222. 

Laflin  &  Rand  Powder  Co.  v.  Steyt- 
ler,  185. 

Lake  E.  &  W.  R  R  Co.  v.  Christison, 
464. 

Lake  E.  &  W.  R  R  Co.  v.  Middle- 
coff,  221,  229. 


XXXIV 


TABLE    OF    CASES. 


References  are  to  pages. 


Lake  S.  &  M.  S.  Ry.  Co.  v.  Richards, 

123. 
Lamb  v.  Beaumont  Temp.  Hall  Co., 

120,  289. 

Lamb  v.  Mills,  404,  405. 
Lambert  v.  Cook,  305. 
Lambert  v.  Stroother,  130. 
Landis  v.  People,  265,  310. 
Lane  v.  Alexander,  343. 
Lang  v.  Whiddam,  44. 
Langdon  v.  Sherwood,  142. 
Langford  v.  Webber,  392,  394 
Laramon  v.  Wells,  251. 
Larned  v.  Hudson,  143. 
Lathbury  v.  Arnold,  399. 
Lathrop  v.  Southworth,  220. 
Latshaw  v.  McNees,  249. 
Latten  v.  McCarty,  23. 
Lawley  v.  Cattacre,  387. 
Lawrence  v.  Fox,  41,  43,  44 
Lawrence  v.  Hageman,  170. 
Layton  v.  Grindal,  38a 
Lazarus  v.  Phelps.  89. 
Leach  v.  Church,  226. 
Learmunth  v.  Grandine,  341. 
Leaves  v.  Bernard,  189. 
Le  Brett  v.  Papillon,  181,  268,  448, 

450. 

Ledesham  v.  Lubram,  438. 
Lee  v.  Abrams,  125. 
Lee  v.  Campbell,  225. 
Lee  v.  Figg,  433. 
Lee  v.  Gibbons,  49. 
Lee  v.  Rogers,  458. 
Lee  Bank  v.  Kitching,  463. 
Legg  v.  Evans,  458. 
Leggett  v.  Humphreys,  199. 
Leidheim  v.  Meyers,  202. 
Leigh  v.  Arnor,  248. 
Leke's  Case,  463. 
Lemp  v.  Fullerton,  138. 
Leneret  v.  Rivet,  422. 
Leonard  v.  Diamond,  142. 
Leonard  v.  Roberts,  362. 
Leopard  v.  Ches.  &  O.  Ry.  Co.,  147. 
Leroux  v.  Murdock,  343. 
Lettick  v.  Honnold,  323. 
Lewis  v.  Chapman.  154,  168. 
Lewis  v.  Preston,  408. 
Leyneld's  Case,  318,  474,  476. 


Libbey  v.  Brown,  431,  453. 
Libby  v.  Scherman,  274,  443. 
Life  Ass'n  of  Am.  v.  Fassett,  247. 
Lightfoot  v.  Brightman,  271. 
Lincoln  v.  Thrall,  200. 
Lincoln  Tp.  v.  Cambria,  222. 
Lindauer  v.  Teeter,  139. 
Lindheim  v.  Sitt,  104 
Linneman  v.  Moross,  43. 
Litch  v.  Clinch,  301. 
Litchfield  Coal  Co.  v.  Taylor,  64 
Little  v.  Chicago,  St.  P.,  M.  &  O.  Ry. 

Co.,  373,  378,  379,  382. 
Livingston  v.  Bishop,  63. 
Livingston  v.  Jefferson,  373,  375,  378, 

379,  445. 

Livingston  v.  Webster,  116. 
Lockhart  v.  White,  219. 
Lockwood  v.  Bigelow,  383. 
Loder  v.  Phelps.  322. 
Loeb  v.  Weis,  438. 
Loewenthal  v.  Strong,  230. 
Logan  v.  Lee,  115. 
Logansport  v.  Uhl,  97. 
Long's  Case,  434. 
Long  v.  Doxey,  95. 
Long  v.  Hitchcock,  247. 
Long  Creek  Ass'n  v.  State  Ins.  Co.. 

420. 

Longley  v.  Norvall,  280. 
Longworth  v.  Flagg,  199. 
Longworth  v.  Screven,  249. 
Longyear  v.  Minnesota  L.  Co.,  97. 
Loomis  v.  Brown,  49,  53,  54 
Lord  v.  Ocean  Bank,  432. 
Lord  v.  Tyler,  351. 
Loring  v.  Hildreth,  481. 
Louisville  Canal  Co.  v.  Murphy,  409. 
Love  v.  Simms,  142. 
Love  v.  Tinsley,  533. 
Lovejoy  v.  Murray,  63. 
Lovell  v.  De  Bardelaben  Co.,  433. 
Lovell  v.  Williams,  44 
Lovett  v.  Pell,  356. 
Lowry  v.  Kinsey,  464 
Loyd  v.  Hough,  89. 
Lucas  v.  Mockels,  310,  330. 
Luifong  v.  Hendricks,  248. 
Lull  v.  Davis,  220. 
Lumley  v.  Gye,  35. 


TABLE    OF   CASES. 


XXXV 


References  are  to  pages. 


Luther  v.  Border),  34 
Lycoming  Ins.  Co.  v.  Rubin,  222. 
Lyle  v.  Richards,  22. 
Lynnet  v.  Wood,  459,  460,  461. 
Lyons  v.  Lawrence,  229. 
McAlister  v.  Kuhn,  251. 
McCandless  v.  McWha,  247. 
McCann  v.  Rathbone,  141. 
McClay  v.  Norris,  240. 
McConighy  v.  Wright,  22,  26. 
McConnell  v.  Kibb,  289,  330. 
McCord  v.  Mech.  Nat.  Bank,  286. 
McCormick  v.  Rusch,  206. 
McCormick  Mfg.  Co.  v.  Snell,  471. 
McCoy  v.  Brennan,  221. 
McCoy  v.  McCoy,  169. 
McCullough  v.  Insurance  Co.,  420. 
McCully  v.  Silverburgh,  338. 
McCurdy  v.  Bullock,  121. 
McDaniels  v.  Reed,  109. 
McDonald  v.  Alabama  Gold  Ins.  Co., 

411. 

McDonald  v.  Falvey,  249. 
McDonough  v.  Heyman,  220. 
McDonough  v.  Kane,  431. 
McDutfee  v.  Portland  &  Rochester  R. 

Co.,  378. 

McDuffee  v.  R.  &  R.  Ry.  Co.,  530. 
McEvoy  v.  Swayze,  219. 
McFadden  v.  Crawford,  126. 
McFarland  v.  Claypool,  211. 
McFaul  v.  Ramsey,  11,  16,  191,  255, 

487. 
McGinnis  v.  Canada  South  Bridge 

Co.,  218. 

McGoon  v.  Aukeny,  89. 
McGuinty  v.  Herrick,  170. 
McGuire  v.  State,  230. 
McHardy  v.  Wadsworth,  221. 
McHugh's  Estate,  415. 
McKay  v.  Williams,  142. 
McKee  v.  Judd.  40. 
McKenna  v.  Fisk,  184. 
McKenzie  v.  Hatton,  356. 
McKindley  v.  Buck,  247,  249. 
MacKinley  v.  McGregor,  285. 
McKoun  v.  Craig,  386. 
McKyring  v.  Bull,  29,  279,  283. 
McLaughlin  v.  Walsh,  247. 
McMahan  v.  Bowe,  119. 


McMurry  v.  Rawson,  69, 125. 
McPherson  v.  Johnson,  121. 
McPherson  v.  McPherson,  125. 
McRae  v.  McDonald,  142. 
McRae  v.  Mattoon,  281. 
McReynolds  v.  B.  &  O.  R  R.  Co.,  219. 
McVey  v.  Quality,  323. 
McWherter  v.  Heltzell,  142. 
Madison  Co.  v.  Smith,  241. 
Magee  v.  Supervisors,  390. 
Magown  v.  Lapham,  233. 
Maguire  v.  Tyler,  255. 
Mahan  v.  Smitherman,  533. 
Mainwaring  v.  Murman,  472. 
Malcolm  v.  O'Reilly,  391,  416. 
Malcolm  v.  Rogers,  60. 
Mallan  v.  May,  268. 
Malony  v.  Adsit,  114,  115. 
Manahan  v.  Gibbons,  61. 
Manders  v.  Craft,  489. 
Maness  v.  Henry,  308. 
Manning  v.  Haas,  406. 
Manser's  Case,  421. 
Marbury  v.  Madison,  33,  127,  136. 
Marie  v.  Garrison.  311,  464 
Marquette  v.  Ward,  219. 
Marsh  v.  Astoria  Lodge,  44 
Marsh  v.  Bulteel,  269,  415,  416, 
Marsh  v.  Newman,  475. 
Marshall  v.  Am.  Exp.  Co.,  219. 
Marshall  v.  Haney,  147. 
Marshall  v.  Otto,  90. 
Marshall  v.  Riggs,  441. 
Marsteller  v.  McLean,  451. 
Marston  v.  Bigelow,  41,  44 
Martin  v.  Dufalla,  44 
Martin  v.  Good,  533. 
Martin  v.  Morelock,  229. 
Martin  v.  Smith,  440. 
Martinely  v.  Gerber,  130. 
Maryland  Ins.  Co.  v.  Ruden,  22a 
Marysville  v.  N.  B.  G.  M.  Co.,  37& 
Mass.  Ins.  Co.  v.  Kellogg,  13& 
Master  v.  Miller,  39. 
Mather  v.  Trinity,  135, 136. 
Mathews  v.  Hamblin,  458. 
Matson  v.  Swanson,  230. 
Matthews  v.  Gary,  404  405. 
Matthews  v.  Redwine,  280. 
May  v.  Attleboro  Bank,  39L 


XXXVI 


TABLE   OF    CASES. 


References  are  to  pages. 


May  v.  I  C.  Ry.  Co.,  383. 

May  v.  Le  Claire,  85,  86. 

Maybee  v.  Moore,  430. 

Maynard  v.  Fireman's  Fund  Ins.  Co., 

308. 

Mayor  of  Oxford  v.  Richardson,  301. 
Mayor  of  Stafford  v.  Bolton,  185. 
Mayor  of  York  v.  Pilkington,  55. 
Meagher  v.  Bachelder,  350. 
Mears  v.  Dexter,  115. 
Mechanics'  Bank  v.  Levy,  12,  13. 
Medina  v.  Stoughton,  447. 
Medlin  v.  Wilkins,  121. 
Medway  v.  Manufactory,  185. 
Mehrhoff  v.  Mehrhoff,  137. 
Mercer  v.  Wholl,  169,  219. 
Merceron  v.  Dowson,  265. 
Meredith  v.  Alleyn,  332. 
Meredith  v.  Sanders,  248. 
Merkle  v.  Bennington,  101,  221,  435, 

533. 

Merriam  v.  Mitchell,  171. 
Merrill  v.  Bearing,  142. 
Merriman  v.  Bush,  126. 
Metropolitan  Ry.  Co.  v.  Chicago  W. 

D.  Ry.  Co.,  51. 

Metzger  v.  Huntington,  237. 
Mex.  Cent.  Ry.  Co.  v.  Gehr,  170. 
Mex.  Cent.  Ry.  Co.  v.  Pinkney,  179. 
Mexico  Mill  Co.  v.  Yellow  Jacket  Co., 

44,  183. 

Meyers  v.  Field,  23. 
Meyers  v.  Smith,  179. 
Middleton  v.  Ames,  251. 
Middleton  Co.  v.  Rock  R.  Co.,  108. 
Milliken  v.  Carys,  12. 
Milliken  v.  Jones,  365,  370. 
Millard  v.  Baldwin,  309. 
Millard  v.  Thorn,  251. 
Miller  v.  Blew,  443. 
Miller  v.  Brown,  170. 
Miller  v.  Hoberg,  142. 
Miller  v.  Martin,  470. 
Miller  v.  Metzger,  385. 
Millett  v.  Blake,  185. 
Millner  v.  Crandall,  474. 
Mills  v.  Alexander,  249. 
Mills  v.  Duryee,  280. 
Milman  v.  Dolwell,  282. 
Minke's  Lessee  v.  McNamee,  143. 


Mints  v.  Bethel,  417,  418,  419,  420. 
Mishner  v.  Granger,  437. 
Mitchell  v.  Milholland,  167. 
Mitchell  v.  Railway  Co.,  137, 211, 224,' 

533. 

Mitchell  v.  Roberts,  138. 
Mitchell  v.  Tarbutt,  63. 
Mix  v.  People,  280. 
Mobley  v.  Bonner,  142. 
Mole  v.  Wallis,  456. 
Monaghan  v.  Agricultural  Fire  Ins. 

Co.,  351. 
•Montague  v.  Boston,  etc.  Iron  Works, 

365. 

Montague  v.  Ficklin,  135. 
Montague  v.  Stets,  109. 
Moody  v.  Keener,  218. 
Moor  v.  Watts,  138. 
Moore  v.  Com.,  432. 
Moore  v.  Earl  of  Plymouth,  441,  442. 
Moore  v.  Spiegel,  182. 
Moore  v.  Wait,  247. 
Moran  v.  Dawes,  131,  289. 
Morewood  v.  Wood,  345. 
Morgan  v.  Adams,  70.  125. 
Morgan  v.  Andrews,  36,  105,  129,  137. 
Morgan  v.  Bell,  229. 
Morgan  v.  Hawkeye,  319. 
Morris  v.  Graves,  185. 
Morris  v.  Thomas,  437. 
Morris  v.  Wadsworth,  335. 
Morrison  v.  Insurance  Co.,  409. 
Moser  v.  Jenkins,  343. 
Mostyn  v.  Fabrigas,  372. 
Moulton  v.  McDermott,  142. 
Moulton  v.  Trask,  36a 
Mount  v.  Scholes,  199,  200. 
Mountstephen  v.  Brooke,  42,  57. 
Mowry  v.  Raabe,  229. 
Moxley  v.  Moxley,  382. 
Moyer  v.  Brand,  478. 
Mueller  v.  U.  S.  Mut.  Ins.  Co.,  252. 
Mullaly  v.  Holden,  429. 
Mumford  v.  Wardwell,  226. 
Munro  v.  Alaire,  453. 
Munday  v.  Vail,  4,  34,  148,  194,  255. 
Mure  v.  Kaye,  407. 
Murphy  v.  McGraw,  464. 
Murphy  v.  Orr,  63. 
Murphy  v.  Richards,  269. 


TABLE    OF   CASES. 


XXXV11 


References  are  to  pages. 


Murray  v.  Hay,  55. 

Murrell  v.  Wright,  121. 

Mutual  Aid  Soc.  v.  Paine,  177. 

Myat  v.  Alaud,  431,  432. 

Myers  v.  Erwin,  237,  238,  269. 

Myers  v.  White,  130. 

Myn  v.  Cole,  436. 

Nash  v.  Gilkeson,  228. 

Neal  v.  Keel's  Ex'rs,  125. 

Neilly  v.  Neilly,  66. 

Nelson  v.  Borchenius,  167,  168. 

Nelson  v.  Burt,  135. 

Nelson  v.  Danielson,  170. 

Nelson  v.  Smith,  221. 

Nelson  v.  Triplett,  142. 

Nerot  v.  Wallace,  271,  272. 

Nevil  v.  Soper,  431,  432. 

New  Jersey  v.  New  York,  65. 

New  Orleans  v.  Citizens'  Bank,  480. 

New  Orleans  v.  Tex.  Pac.  Ry.  Co.,  420. 

New  Orleans  v.  United  States,  219. 

New  York  &  N.  H.  Ry.  Co.  v.  Schuy- 

ler  et  al.,  47,  55. 

N.  &  W.  R.  Co.  v.  Ampey,  346,  353. 
Newton  v.  Border,  248. 
Newton  v.  Stubbs,  442. 
Nichol  v.  Mason,  182. 
Nichol  v.  Milton,  464. 
Nichols  v.  Drew,  356. 
Nichols  v.  Mitchell,  108. 
Nicholson  v.  Simpson,  322. 
Nickerson  v.  Gould,  101. 
Nolan  v.  Swift,  88. 
Norden  v.  Jones,  93. 
Normanson  v.  Hitchcock,  384. 
Norris  v.  Pollard,  533. 
North  C.  R.  M.  v.  Monka,  533. 
Norton  v.  Gordon,  168. 
Nott  v.  Sampson  Mfg.  Co.,  119. 
Nowlan  v.  Geddes,  267,  450. 
Nurse  v.  Willis,  271. 
Nye  v.  Spencer,  370. 
Oakley  v.  Devoe,  478. 
Oaksmith  v.  Johnson,  142. 
Gates  v.  Clendenard,  185. 
Gates  v.  Kendall,  132. 
Odd  Fellows  Hall  Ass'n  v.  McAllister, 

138. 

Odurn  v.  Rutledge,  219. 
Ogden  v.  Moore,  97. 


Ogdensburgh  v.  Van  Rensselaer,  356. 

Oglethorpe  v.  Hyde,  423,  424. 

Ohio  &  M.  Ry.  Co.  v.  People,  266, 387, 

406. 

Ohio  &  M.  Ry.  Co.  v.  Van  Gelder,  260. 
Olin  v.  State,  411. 
Olsen  v.  Upsahl,  282,  286. 
Omaha,  etc.  Co.  v.  Tabor,  94. 
Onslow  v.  Smith,  445. 
Oppenheimer  v.  Barr,  247. 
O'Rourk  v.  Sioux.  268. 
Osborn  v.  Reed,  203. 
Osborn  v.  Rogers,  345. 
Osborne  v.  Clark,  415. 
Oscanyan  v.  Arms,  384,  385. 
Osgood  v.  McConnell,  221. 
Ostrum  v.  Calkins,  167. 
Owen  v.  Reynolds,  458. 
Owens  v.  Geiger,  426. 
Owens  v.  Paxton,  248. 
Oystead  v.  Shed,  435. 
Pac.  R.  Co.  v.  Mo.  Pac.  R.  Co.,  269. 
Page  v.  Tucker,  142. 
Pain  v.  Cowdin,  252. 
Palmer  v.  Elkins,  291. 
Palmer  v.  Field,  183. 
Palmer  v.  Merrill,  39. 
Palmer  v.  Plankroad  Co.,  420. 
Pardey  v.  Mechanicsville,  270. 
Park  v.  McGowen,  125. 
Parker  v.  Meek,  130. 
Parker  v.  Parker,  185. 
Parkes  v.  Burgess,  435. 
Parkes  v.  Holmes,  251. 
Parkes  v.  Middleton,  417. 
Parks  v.  Boston,  201. 
Parks  v.  Smith,  237. 
Parmele  v.  Guthery,  229. 
Partley  v.  Godslake,  479. 
Partridge  v.  Strange,  412,  425,  426. 
Parvis  v.  Truax,  303. 
Patrick  v.  McManus,  479. 
Patterson  v.  Collier,  229. 
Patterson  v.  Detroit,  220. 
Patterson  v.  United  States,  218. 
Patterson  v.  Wilkinson,  871. 
Payne's  Appeal,  104 
Payne  v.  Niles,  240. 
Pearce  v.  Hall,  425. 
Pearcy  v.  Michigan,  229. 


XXXV111 


TABLE   OF   CASES. 


References  are  to  pages. 


Pearson  v.  Herr,  115. 

Pearson  v.  M.  &  St.  P.  Ry.  Co.,  302. 

Pease  v.  McKusick,  458. 

Peck  v.  Chouteau,  247. 

Peck  v.  Elder,  55. 

Peck  v.  Newtown,  23,  25. 

Peck  v.  Sill,  45,  48,  533. 

Peden  v.  King,  185. 

Pekin  v.  Winkel,  221. 

Penfield  v.  Rich,  51. 

Pennock  v.  Dialogue,  247. 

Pennoyer  v.  Neff,  373. 

Pennsylvania   v.  Wheeling    Bridge 

Co.,  249. 

Penn  Co.  v.  Conlon,  224 
Penn.  Ry.  Co.  v.  Ellett,  272,  434 
Penn  Mut.  Ins.  Co.  v.  Heirs,  137. 
Penton  v.  Holland,  351. 
People  v.  Coughlin,  247. 
People  v.  Crabb,  268. 
People  v.  Harmon,  357. 
People  v.  Lane,  153,  191. 
People  v.  Liscomb,  34 
People  v.  McCumber,  478,  479. 
People  v.  Parish,  222. 
People  v.  Pullman  Co.,  305,  306. 
People  v.  Raisin  &  L.  E.  Ry.  Co.,  350. 
People  v.  Ryder,  24,  153,  156,  382,  406. 
People  v.  Spring  Valley,  270. 
People  v.  Swenson.  230. 
People  v.  Tioga,  40. 
People  ex  rel.  Benoit  v.  Miller,  100, 

101. 

Peoria  &  R.  T.  R.  Co.  v.  Birkett,  229. 
Percell  v.  Bradley,  432. 
Percival  v.  Hickey,  128. 
Perry  v.  Dickinson,  105. 
Perry  v.  Marsh,  351. 
Peters  v.  Delaplaine,  25. 
Peters  v.  Uhner,  365. 
Petticolas  v.  City  of  Richmond,  63. 
Pettingill  v.  Boynton,  119,  120. 
Petty  v.  Trustees,  464 
Peyton  v.  Cook,  175. 
Phelps  v.  Randolph,  114. 
Phenix  Ins.  Co.,  Ex  parte,  379. 
Phillips  v.  Belden,  70. 
Phillips  v.  Brigham,  385. 
Phillips  v.  Dickinson,  385. 
Phillips  v.  Harris,  195. 


Pick  v.  Rubicon  Co.,  202. 

Pickett's  Heirs  v.  Leger wood, 247, 248. 

Piercy  v.  Sabin,  478. 

Pike  v.  Colvin,  425. 

Pilgi-im  v.  Mellor,  379. 

Pinkham'v.  Gear,  135. 

Pippett  v.  Hearn,  271. 

Pitkin  v.  Roley,  60. 

Pitt  v.  Russell,  402. 

Pittsburgh  &  C.  Ry.  Co.  v.  Reynolds, 

94 
Pittsburgh,  Ft.  W.  &  C.  Ry.  Co.  v. 

Cheevers,  35. 
Pitts'  Sons'  Mfg.  Co.  v.  Commercial 

Nat.  Bank,  177,  182,  260,  445,  450. 
Platner  v.  Platner.  247. 
Platt  v.  Hill,  412. 
Playter's  Case,  387. 
Plomer  v.  Ross,  232,  406. 
Plosket  v.  Beeby,  445. 
Plumb  v.  Campbell,  229. 
Plummer  v.  Dennett,  170. 
Plummer  v.  Woodburn,  327. 
Poleman  v.  Johnson,  385. 
Poley  v.  Williams,  441. 
Polk  v.  Henderson,  129. 
Pollard  v.  Lyon,  167. 
Pope  v.  Tillman,  387. 
Porter  v.  Gray,  399. 
Porter  v.  North,  139. 
Porter  v.  Vandercook,  109. 
Potter  v.  Baker,  119. 
Potter  v.  Earnest,  370. 
Potter  v.  Titcomb,  233,  353. 
Potts  v.  Polehampton,  231. 
Powdick  v.  Lyon.  452. 
Powell  v.  Fullerton,  450. 
Powell  v.  Gray,  533. 
Powers  v.  Cook,  310,  311,  445. 
Powers  v.  Ware,  476. 
Poynter  v.  Poynter,  435. 
Pratt  v.  Thornton,  42. 
Price  v.  Brown,  220. 
Price  v.  Fletcher,  463,  464 
Price  v.  Sinclair,  251. 
Prichard  v.  Budd,  44. 
Prince  v.  Bruwatte,  453. 
Prosser  v.  Woodward,  296,  301,  307. 
Pullin  v.  Nicholes,  437. 
Pullman  P.  C.  Co.  v.  Barker,  94 


TABLE   OF   CASES. 


XXXIX 


References  are  to  pages. 


Pullman  P.  C.  Co.  v.  Laack,  385. 
Pullman  P.  C.  Co.  v.  Mo.  Pac.  R  Co., 

268. 

Pullman  P.  C.  Co.  v.  People,  291. 
Pulse  v.  Miller,  429. 
Purcell  v.  Railway  Co.,  137. 
Py-ster  v.  Hemling,  397. 
<3uincy  Coal  Co.  v.  Hood,  100,  153, 

230,  468. 

Quinebaug  Bank  v.  Leavens,  229. 
Radford  v.  Harbyn,  320. 
Railway  Co.  v.  Bates,  433. 
Railway  Co.  v.  Stewart,  248. 
Rainey  v.  Sinnzer,  59. 
Ramsdell  v.  Morgan,  135. 
Rand  v.  Rand,  204. 
Rand  v.  Skillin,  119. 
Rankin  v.  Curtenius,  384. 
Ransom  v.  Jones,  39. 
Ranson  v.  Henderson,  64. 
Rantin  v.  Robertson.  203. 
Rapelye  v.  Emory,  480,  481. 
Raser  v.  Quails,  340. 
Rathbone  v.  Hooney,  45. 
Ray  v.  Thompson,  229. 
Raymond  v.  People.  431. 
Read  v.  Brookman,  475,  476. 
Rearick  v.  "Wilcox,  167. 
Rector  v.  Gaines,  143. 
Reed  v.  Gitford,  55. 
Reed  v.  Jourdan,  97. 
Reed  v.  Tyler,  142. 
Reedy  v.  Purdy,  129. 
Reg.  v.  Governor,  231. 
Regan  v.  Harrell,  117. 
Regnier  v.  Cabot,  168. 
Reid  v.  Brookman,  276. 
Reid  v.  Lane,  466. 
Reid  v.  Lord,  185. 
Reilly  v.  Ringland,  389. 
Relyea  v.  Beaver,  383. 
Rex  v.  Bishop,  305. 
Rex  v.  Burdett,  374. 
Rex  v.  Cook,  260. 
Rex  v.  Gibson,  178. 
Rex  v.  Holland,  373,  383. 
Reynolds  v.  Stockton,  4,  34,  148,  194, 

218,  255. 

Rice  v.  Shute,  61,  63,  237. 
Rich  v.  Baker,  139. 


Rich  v.  N.  Y.  C.  &  H.  R  Ry.  Co.,  86, 

107,  137. 

Rich  v.  Pilkington,  269. 
Richardson  v.  Coffnian,  95. 
Richardson  v.  Hodges,  421. 
Richardson  v.  Mayor  of  Oxford,  305, 

308,  309. 

Richardson  v.  Reed,  138. 
Richardson's  Ex'r  v.  Jones,  246,  248. 
Richley  v.  Proove,  479. 
Richmond  v.  Atkinson,  202. 
Ricker  v.  Freeman,  128. 
Rider  v.  Smith,  401,  426. 
Ridgely  Nat.  Bank  v.  Fairbank,  211. 
Ridling  v.  Stewart,  180. 
Riehl  v.  Bingenheimer,  143. 
Rigg  v.  Parsons,  533. 
Riggs  v.  Bullingham,  428. 
Riggs  v.  Denniston,  322. 
Riggs  v.  Riley,  142. 
Rigney  v.  Chicago,  51. 
Ringhouse  v.  Keener,  251. 
Rison  v.  Farr,  451. 
Rivers  v.  Griffiths,  389. 
Riverside  Co.  v.  Townshend,  115. 
Roan  v.  Holmes,  114 
Roberts  v.  Graham,  468. 
Roberts  v.  Mariett,  455. 
Roberts  v.  Moore,  182. 
Roberts  v.  Taylor,  401. 
Robinsoa  v.  111.  Cent.  Ry.  Co.,  885. 
Robinson  v.  Peterson,  126,  127. 
Robinson  v.  Rayley,  16,  302,  354. 
Robinson  v.  Smith,  397. 
Robinson  C.  C.  Co.  v.  Johnson,  221. 
Rockwell  Co.  v.  Castroni,  409. 
Roehm  v.  Horst,  95, 123. 
Rogers  v.  Burk,  340. 
Rollett  v.  Heiman,  463. 
Rollins  v.  Ames,  229. 
Rolseth  v.  Smith,  433. 
Romer  v.  Center,  413. 
Romeyn  v.  Sickles,  97. 
Ronge  v.  Dawson,  139,  2ia 
Root  v.  Woodruff,  322. 
Rorabacher  v.  Lee,  220. 
Ross  v.  Bates,  533. 
Ross  v.  Luther.  109. 
Ross  v.  Mathen,  220. 
Ross  v.  Nesbit,  445. 


xl 


TABLE   OF    CASES. 


References  are  to  pages. 


Roth  v.  Roth,  220. 

Rothchilds  v.  Bruschke,  231. 

Roughton  v.  Browne,  249. 

Routh  v.  Weddell,  269. 

Rowe  v.  Tuttle,  451. 

Rowell  v.  Hayden,  199. 

Rowles  v.  Lusty,  188. 

Rubens  v.  Stevens,  389. 

Rudd  v.  Darling,  266. 

Rudder  v.  Price,  122,  123,  133. 

Ruffner  v.  Hill,  228. 

Ruffners  v.  Lewis,  142. 

Ruggles  v.  Adams,  204 

Ruggles  v.  Lesure,  282. 

Rush  v.  Seymour,  211. 

Rushton  v.  Aspinwall,  274. 

Russell  v.  Chambers,  464. 

Russell  v.  Rogers,  353,  464 

Rutledge  v.  Corbin,  54. 

Ryan  v.  May,  269,  270. 

Ryan  v.  Vanlandingham,  440. 

Sabine  &  E.  T.  R,  Co.  v.  Brousard, 

464 

Sackett  v.  Sackett,  118. 
Sade  v.  Drake,  478. 
Safford  v.  Miller,  268,  308. 
Safford  v.  Sangamon,  445. 
Salt  Lake  City  Nat.  Bank  v.  Hen- 

drickson,  251,  453. 
Sammis  v.  Wightman,  280. 
Sampson  v.  Smith,  129. 
Sanders  v.  Hartge,  135. 
Sanders  v.  State,  249. 
Sanderson  v.  Caldwell,  167. 
Sandford  v.  Gaddis,  168. 
Sandis  v.  Wildsmith,  46,  496. 
Sands  v.  Church,  38.  lia 
Sasson  v.  Walker's  Ex'rs,  458. 
Saunders'  Case,  460,  461. 
Saunders  v.  Hussey,  394. 
Savacool  v.  Boughton,  170. 
Savage  v.  Hawkins,  395. 
Sayer  v.  Pocock,  194 
Sayre  v.  Binns,  406. 
Sayre  v.  Minns,  335,  337. 
Schemerhorn  v.  Jenkins,  183. 
Schley  v.  Pryor,  67. 
Schmidberger  v.  Bloner,  116. 
Schmidt  v.  Thomas,  390. 
Schmisseur  v.  Kreilich,  168. 


Schofield  v.  Jennings,  185. 
Scholfield  v.  Settley.  385. 
School  District  v.  Edwards,  54 
Schroeder  v.  Insurance  Co.,  109. 
Cchuetzen  Bund  v.  Agitation  Verein, 

44,  183. 

Schulenberg  v.  Campbell,  127. 
Schultze  v.  Rodewald,  479. 
Scilly  v.  Dally,  396.  397. 
Scofield  v.  Whitelegge,  268. 
Scott  v.  Goodwin,  47. 
Scott  v.  Sanford,  179,  182,  249. 
Scott  v.  Schnadt,  148. 
Scott  v.  Shepperd,  128. 
Searl  v.  Bunnion,  394,  396,  397. 
Sears  v.  Mortgage  Loan  Co.,  211. 
Seattle  Bank  v.  Carter,  367,  431. 
Seattle  Nat.  Bank  v.  Neuwaldt,  436. 
Secrist  v.  Petty,  411. 
Sedgworth  v.  Overend,  51. 
Selby  v.  Bardon,  288. 
Senecal  v.  Labadie,  282. 
Sertel  v.  Graeter,  228. 
Service  v.  Heermance,  335. 
Sevlenis  v.  Ladew,  376. 
Seward  v.  Jackson,  225,  226. 
Sewell  v.  Catlin,  167. 
Sewell  v.  State,  229. 
Shadwell  v.  Berthond,  479. 
Shanahan  v.  Tallman,  433. 
Sharp  v.  Hoffman,  22a 
Shaw  v.  Remond,  194. 
Shaw  v.  Tobias,  269,  270, 
Shawhan  v.  Long,  143. 
Sheers  v.  Brooks,  415. 
Shehan  v.  Collins,  169. 
Shepherd  v.  Field,  463. 
Sherland  v.  Heaton,  441. 
Shinners  v.  Proprietors  of  Locks  & 

Canals,  247. 

Shiperd  v.  Underwood,  219. 
Shondy  v.  School  Directors,  115. 
Shriver  v.  Nimick,  125. 
Shum  v.  Farrington,  419. 
Siedenbach  v.  Riley,  139. 
Simmons  v.  Jenkins,  139,  282,  322. 
Simons  v.  Winters,  147. 
Simonton  v.  Winters.  255,  258. 
Simpson  v.  Hastopp,  341. 
Simpson  v.  McFaiiand,  137. 


TABLE   OF   CASES. 


xli 


References  are  to  pages. 


Simpson  v.  Eailway  Co.,  238. 

Sinsheimer  v.  Skinner  Manuf.  Co.,  61. 

Six  Carpenters'  Case,  289,  331. 

Slack  v.  Lyon,  274. 

Slade  v.  Drake,  436. 

Slade  v.  Dowland,  443,  444. 

Sletght  v.  Henning,  221. 

Sloan  v.  Railway  Co.,  137. 

Sloan  v.  Williams,  38,  40. 

Slocum  v.  Kuykendall,  168. 

Smith  v.  Atlantic  Mut  Ins.  Co.,  182. 

Smith  v.  Barclay,  391. 

Smith  v.  Carroll,  199. 

Smith  v.  C.,  M.  &  St.  P.  R.  Co.,  533. 

Smith  v.  Chamberlain,  285. 

Smith  v.  Church,  346. 

Smith  v.  Dovers,  302. 

Smith  v.  E.  T.,  V.  &  G.  Ry.  Co.,  356. 

Smith  v.  Feverell,  415. 

Smith  v.  Force,  391. 

Smith  v.  Hodsen,  90. 

Smith  v.  Hollenback,  115. 

Smith  v.  Holmes,  351,  463. 

Smith  v.  Hunt,  50,  142. 

Smith  v.  Hurd,  109. 

Smith  v.  Kingsley,  249. 

Smith  v.  Lathrop,  182. 

Smith  v.  Lorillard,  142. 

Smith  v.  McCann,  142. 

Smith  v.  Missouri  Pac.  Ry.  Co.,  97. 

Smith  v.  Nicolls,  453. 

Smith  v.  Pierce,  289. 

Smith  v.  Rumsey,  97. 

Smith  v.  Smith,  142. 

Smith  v.  Watson,  229. 

Smith  v.  White,  416. 

Smith  v.  Williams,  221. 

Smith  v.  Woodward,  204,  476. 

Smith  v.  Wunderlich,  130. 

Smith  v.  Yeomans,  478. 

Smith's  Adin'r  v.  Lloyd,  346. 

Smock  v.  Bade,  249. 

Sneed  v.  Wister,  280. 

Sneeden  v.  Harriss,  432. 

Snediker  v.  Quick,  139. 

Snook,  In  re,  185. 

Snyder  v.  Croy,  335. 

Snyder  v.  Harper,  533. 

Society  v.  Whitcomb,  109. 

Solomon  v.  Vinson,  28, 308,  364. 


Sorbie  v.  Peck,  49. 

Southern  Pac.  R,  Co.  v.  Denton.  180. 

Spaids  v.  Barrett,  170,  171. 

Spaulding  v.  Lowe,  238. 

Speeder  Co.  v.  Teeter.  405. 

Spence  et  al.  v.  N.  W.  Ry.  Co.,  45. 

Spencer  v.  McMaster,  168. 

Spencer  v.  Otis,  311. 

Spencer  v.  Southwick,  435,  437. 

Spencer  v.  Towles,  42. 

Spencer  v.  Trafford,  383. 

Speyer  v.  Desjardins,  429. 

Sphung  v.  Moore,  141. 

Spieres  v.  Parker,  271. 

Springfield   Fire   &  M.   Ins.    Co.  v. 

Allen,  51. 

Spruck  v.  Forsythe,  437. 
St.  Clair  Co.  Ben.  Soc.  v.  Fietsam,  22& 
St.  John  v.  St.  John,  413,  414 
St.  Louis,  etc.  Ry.  Co.  v.  Carltas,  49. 
Stachely  v.  Pierce,  48. 
Stafford  v.  King,  2ia 
Stafford  v.  Mayor,  233. 
Stahl  v.  Grover,  130. 
Stancliff  v.  Hardwick,  136,  165. 
Staniford  v.  Barry,  249. 
Stanley  v.  Neale,  139. 
Stanton  v.  Embrey,  182. 
Staple  v.  Heydon,  231,  232. 
Starrett  v.  Gault,  60. 
State  v.  Burt,  229. 
State  v.  Calhoun,  249. 
State  v.  Grant,  185. 
State  v.  Hamlin,  269. 
State  v.  Hope,  247. 
State  v.  Logan,  440. 
State  v.  Martin,  185. 
State  v.  Peck,  240,  267. 
State  v.  Raymond,  230. 
State  v.  School  Board,  268,  309. 
State  v.  Stanton,  84. 
State  v.  Weiskittle,  248. 
State  v.  Young,  33. 
Steamboat  Burns,  44,  183. 
Steamship  Co.  v.  Sheahan,  127. 
Stearns  v.  Sampson,  114. 
Stearns  v.  Stearns,  348. 
Stedman  v.  Shelton,  59. 
Steele  v.  Boyd.  249. 
Steele  v.  G.  T.  Ry.  Co.,  237. 


xlii 


TABLE    OF   CASES. 


References  are  to  pages. 


Steffe  v.  Old  C.  Ry.  Co.,  268. 

Steinmetz  v.  Currey,  228. 

Stennel  v.  Hogg,  301. 

Stephen  v.  Beall,  432. 

Stephens  v.  Mudget,  533. 

Stephens  v.  People,  218. 

Stephenson  v.  Little,  165. 

Sterling  v.  Sherwood,  322. 

Sterns  v.  Patterson,  454. 

Stetson  v.  Day,  118. 

Stevens  v.  Catlin,  49. 

Stevens  v.  Fisher,  280. 

Stevens  v.  Mayor,  11. 

Stevens  v.  New  York,  143. 

Stevens  v.  Stebbins,  185. 

Stewart  v.  Hotchkiss,  251. 

Stewart  v.  Masterson,  191. 

Stewart  v.  Travis,  470. 

Steinfeldt  v.  Taylor,  44. 

Stibbs  v.  Clough,  205. 

Stillman  v.  Palis,  115,  117. 

Stilson  v.  Tobey,  281. 

Stilwell  v.  Carpenter,  390. 

Stockwell  v.  C.  C.  &  D.  R  Co.,  201. 

Stockwell  v.  United  States,  122,  123. 

Stoddard  v.  Treadwell,  442. 

Stone  v.  Stevens,  170. 

Stone  v.  United  States,  379. 

Stoner  v.  Menham,  202. 

Story  v.  Early,  169. 

Storrs  v.  St.  Luke's  Hosp.,  38. 

Stowell  v.  Lord  Zouch,  413,  414. 

Strader  v.  Snyder,  168. 

Stradfield  v.  Holliday,  48. 

Straight  v.  Hanchett,  182. 

Strang  v.  Judge,  97,  453,  457. 

Strang  v.  Richmond,  etc.  R.  Co.,*31. 

Stratton  v.  Cent.  C.  H.  R  Co.,  219. 

Strauss  v.  Meyer,  167. 

Street  v.  Hopkinson,  450. 

Stroud  v.  Springfield,  121. 

Stuart  v.  Harris,  135. 

Stubbs  v.  Lainson,  342. 

Stuber  v.  McEntee.  45,  343. 

Stubs  v.  Stubs,  494. 

Stultz  v.  Dickey,  130. 

Stumps  v.  Kelley,  338. 

Sturgis  v.  Burton,  260,  262. 

Sukeforth  v.  Lord,  426,  433. 

Sullivan  v.  Iron  Silver  Mine  Co.,  268. 


Sumner  v.  Brown,  533. 
Sumner  v.  Sleeth,  42,  57. 
Supervisors  v.  Decker,  90,  97,  98,  99, 

102,  105,  220,  308. 
Susquehanna  &  W.  V.  R  Co.  v.  Blatch- 

ford,  191. 

Sutherland  v.  Bradstreet,  167. 
Sutherland  v.  Phelps,  425. 
Suydam  v.  Williamson,  203,  224,  226, 

246,  247,  249. 
Swan  v.  Wilkinson,  183. 
Swarington  v.  Pendleton,  252. 
Swayze  v.  Burke,  142. 
Swearingen  v.  Reed.  121. 
Sweigart  v.  Berk,  57. 
Swift  &  Co.  v.  Foster,  105,  176,  457. 
Swift  &  Co.  v.  Madden,  104. 
Swift  Co.  v.  Raleigh,  151. 
Swigart  v.  Weare,  61. 
Sykes  v.  First  Nat.  Bank,  23,  25. 
Symmons  v.  Knox,  381. 
Taber  v.  Com.  Nat.  Bank,  431,  432. 
Taft  v.  Brewster,  346. 
Tampian  v.  Newsam,  469. 
Tarns  v.  Lewis,  226,  231. 
Tanning  v.  Chase,  129. 
Taylor  v.  Cole,  289,  330. 
Taylor  v.  Doremus,  405. 
Taylor  v.  Eastwood,  319,  3C2. 
Taylor  v.  Hall,  251. 
Taylor  v.  Shew,  432. 
Taylor  v.  Taylor,  42. 
Teazle  v.  Simpson,  109. 
Tefft  v.  Ashbough,  385. 
Tegg  v.  Dunleary,  167. 
Terboss  v.  Williams,  335. 
Terry  v.  Munger,  88,  90,  94,  155,  164, 

220,  308,  441. 

Terry  v.  Wenderoth,  464 
Thatcher  v.  Gammon,  249. 
Thayer  v.  Brewer,  312,  319. 
The  King  v.  Bishop,  383. 
The  King  v.  Burdett,  374,  382. 
The  King  v.  Cook,  260. 
The  King  v.  Holland,  383. 
The  King  v.  Hollingberry,  432. 
The  King  v.  Lyme  Regis,  411,  412, 

435. 

The  King  v.  Phillips,  231. 
The  King  v.  Stevens,  432. 


TABLE   OF   CASES. 


xliii 


References  are  to  pages. 


Thomas  v.  Black,  301,  307. 
Thomas  v.  Crofut.  118. 
Thomas  v.  Dunaway,  168. 
Thomas  v.  Fischer,  168. 
Thomas  v.  Marsh,  330. 
Thomas  v.  Vandermoolen,  479. 
Thomas  v.  Winchester,  136. 
Thomasson  v.  Wilson,  114. 
Thompson  v.  Ellsworth,  170. 
Thompson  v.  Fellows,  340. 
Thompson  v.  Hunger,  437. 
Thompson  v.  People,  237,'  463. 
Thompson  v.  Railway  Co.,  96a. 
Thompson  v.  Strain,  61. 
Thompson  v.  Thompson,  228. 
Thompson  v.  Turner,  108. 
Thompson  v.  United  States,  199. 
Thompson  v.  Worster,  241. 
Thomson  v.  Madison.  247. 
Thomson-Houston    Electric    Co.    v. 

Palmer,  409. 
Thome  v.  Rolfe,  335. 
Thornton  v.  Adams,  432. 
Thorp  v.  Keokuk  Canal  Co.,  415. 
Thorpe  v.  Hook,  531. 
Thrale  v.  Bishop,  305. 
Thrasher  v.  Postel,  229. 
Thurber  v.  Conners,  120. 
Thynne  v.  Woodman,  210. 
Tiffany  v.  Johnson,  338. 
Titus  v.  Johnson,  120,  121. 
Toden  v.  Haines,  307. 
Toledo,  W.  &  W.  Ry.  Co.  v.  Building, 

356. 
Toledo,  W.  &  W.  Ry.  Co.  v.  McLaugh- 

lin,  97,  100. 
Tolputt  v.  Wells,  453. 
Tome  v.  Dubois,  39,  89. 
Tomlin  v.  Burloe,  439. 
Tomlin  v.  Cox,  230. 
Tomlins  v.  Earnshaw,  468. 
Tomlinson  v.  Warner,  170. 
Toney,  Ex  parte.  249. 
Topping  v.  Frye,  477. 
Torrence  v.  Strong,  479. 
Towle  v.  Welsh,  271. 
Townsend  v.  Jemison,  268. 
Townsend  v.  Rackham,  43. 
Tozer  v.  N.  Y.  C.  &  H.  R.  Co.,  247. 
Travis  v.  Barger,  470. 
Tregent  v.  Maybee,  356. 


Tregoning  v.  Allenborough,  135. 
Trevelian  v.  Secomb,  347. 
Tribble  v.  Frame,  114,  130,  401. 
Tripp  v.  Commissioners,  229. 
Tripp  v.  Grounder,  230. 
Trollop's  Case,  John,  445. 
Tryon  v.  Pingree,  170. 
Tucker  v.  Ladd,  47a 
Turner  v.  Turner,  247. 
Turner  v.  Walker,  170,  17L 
Tyler  v,  Hand,  189,  266,  268. 
Tyssen  v.  Clarke,  234. 
Underwood  v.  Campbell,  322. 
Union  Bank  v.  Manistee  Co.,  233, 252. 
Union  Pacific  Ry.  Co.  v.  Kelley,  47, 

91,  92. 
Union  Pacific  Ry.  Co.  v.  Wyler,  97, 

98,  454,  456,  533. 

United  States  v.  Arredondo,  34. 
United  States  v.  Arthur,  268. 
United  States  v.  Benner,  184 
United  States  v.  Brown,  126. 
United  States  v.  Burnham,  463. 
United  States  v.  Colt,  122,  123. 
United  States  v.  Fries,  229. 
United  States  v.  Leffler,  480. 
United  States  v.  Ordway,  470. 
United  States  Ins.  Co.  v.  Ludwig,  64, 

533. 
U.  of  M.  v.  Detroit  Young  Men's  Ass'n, 

204 

Uridias  v.  Morrell,  431. 
Vadakin  v.  Saper,  274 
Valandingham  v.  Ryan,  481. 
Van  Etten  v.  Hurst,  265,  313. 
Van  Horn  v.  Emerson,  59. 
Vanhorn  v.  Freeman,  130. 
Van  Namee  v.  Bradley,  282. 
Van  Rensselaer  v.  Wright,  96A 
Vansandan  v.  Burt,  220. 
Van  Sickle  v.  Keith,  265. 
Vaughn  v.  Evarts,  351. 
Vaughn  v.  Harans,  286. 
Vaux  v.  Steward,  53. 
Veale  v.  Warner,  449. 
Veiss  v.  Whittemore,  167. 
Vere  v.  Smith,  335,  336,  457. 
Vicary  v.  Moore,  200. 
Vifquain  v.  Finch,  169. 
Vincent  v,  Morrison,  225. 
Voll  v.  Butler,  115. 


xliv 


TABLE    OF    CASES. 


References  are  to  pages. 


Von  Kettler  v.  Johnson,  405. 
Voorhees  v.  Mante  City,  433. 
Voorhis  v.  Child's  Ex'r,  47,  59. 
Vrooman  v.  Turner,  43. 
Vynior's  Case,  415,  416. 
Wabash  C.  St.  Ry.  Co.  v.  Loewe,  323. 
Wabash  R.  Co.  v.  Speer,  226. 
Wabash,  St.  L.  &  P.  Ry.  Co.  v.  Shack- 
let,  86,  107. 

Wade  v.  Emerson,  199. 
Wadhams  v.  Swan,  286,  342,  459. 
Waidner  v.  Pauley,  279. 
Walker  v.  Armour,  338. 
Walker  v.  Richards,  429. 
Walker  v.  Walker,  230. 
Wall,  Ex  parte,  435. 
Wall  v.  De  Mitkiewicz,  39. 
Wallace  v.  McConnell,  200. 
Waller  v.  Bowling,  136. 
Wallis  v.  Savil,  451. 
Walter  v.  Beckman,  150. 
Walters  v.  Hodges.  292. 
Walters  v.  Mace.  391. 
Walters  v.  Smith,  286. 
Walsh  v.  Durkin,  182. 
Walsingham's  Case,  413,  414 
Ward  v.  Blunt's  Case,  462. 
Ward  v.  Duke  of  Northumberland,  55. 
Ward  v.  Smith,  468. 
Ward  v.  Voris,  229. 
Warfield  v.  Lindell,  143. 
Warner  v.  Wainsford,  459,  462. 
Warner's  Ex'rs  v.  Bledsoe,  195. 
Warren  v.  Warren,  92. 
Washburn  v.  M.  &  L.  W.  Ry.  Co.,  201. 
Washington  Ice  Co.  v.  Webster,  139. 
Waterman  v.  Andrews,  64. 
Waterman  v.  Holmes,  445. 
Waterman  v.  Lawrence,  4,  255. 
Watkins  v.  Junker,  468. 
Watriss  v.  Pierce,  365. 
Wayland  v.  Tysen,  479. 
Weaver  v.  Loyd,  342. 
Weaver  v.  Megent,  411. 
Webb  v.  Martin,  451. 
Webster  v.  Oilman,  119. 
Weed  v.  S.  &  S.  Ry.  Co.,  64 
Weeks  v.  Peach,  449. 
Weiss  v.  Whitfcimore,  435. 
Welch  v.  Jamison,  346. 


Weller  v.  Baker,  53,  494. 
Wellington  v.  Miliken,  383. 
Wells  v.  Patton,  179. 
Welsbeck  v.  Glass,  97. 
Weltale  v.  Glover,  333. 
West  v.  Troles,  365. 
Weston  v.  Johnson,  228. 
Weston  v.  Mason,  271,  272. 
Western  Assurance  Co.  v.  Koontz, 

270. 

Western  Ry.  Co.  v.  Nolin,  42. 
Western  U.  Tel.  Co.  v.  Scircle,  124 
Wetherell  v.  Clarkson,  428. 
Wetmore  v.  Law,  249. 
Wettenhall  v.  Sherwin,  441. 
Whidden  v.  Seelye,  135. 
Whitaker  v.  Turnbull,  109. 
White  v.  Cannader,  468. 
White  v.  Cleaver,  422. 
White  v.  Fox,  171. 
White  v.  Graham,  164 
White  v.  Murtland,  95,  130. 
White  v.  Wagner,  117. 
Whiteman  v.  Hyland,  142. 
Whitler  v.  Cazelet  204. 
Whitney  v.  Blackburn,  108. 
Whitney  v.  C.  &  N.  W.  R  Co.,  260, 

362. 

Whitney  v.  Cochran,  194 
Whitney  v.  Price,  435. 
Whitney  v.  Shufelt,  405. 
Whitney  v.  Stark,  62, 
Whittaker  v.  Izod,  204 
Whittmore  v.  Ware,  274 
Whitwell  v.  Bennett,  391. 
Wiat  v.  Essington,  387. 
Wick  v.  Dawson,  308. 
Wicks  v.  Smith,  143. 
Wickersham  v.  Crittenden,  464 
Wiggins  Co.  v.  Chicago,  222. 
Wighton  v.  Smith,  48. 
Wilborn  v.  Odell,  168. 
Wilcox  v.  Kinzie,  296,  301. 
Wilder  v.  Handy,  441. 
Wiley  v.  Logan,  247. 
Wiley  v.  Rouse's  Point,  355. 
Wiley  v.  Williamson,  119. 
Wilkes  v.  Williams,  471. 
Wilkinson  v.  Mosley,  251. 
Wilkis  v.  Broadbent,  231. 


TABLE   OF   CASES. 


xlv 


References  are  to  pages. 


Willey  Y.  Carpenter,  348,  353. 

Williams  v.  Baker.  195. 

Williams  v.  Hunter,  170,  171. 

Williams  v.  Nesbit,  383. 

Williams  v.  Preston,  281. 

Williams  v.  Sexton,  464. 

Willis  v.  Eastern  Trust  Co.,  114. 

Wilson  v.  Fine,  142. 

Wilson  v.  Hamilton,  183. 

Wilson  v.  Hickson,  126. 

Wilson  v.  Hobday,  416,  417. 

Wilson  v.  Johnson,  97,  374,  453,  456. 

Wilson  v.  Kemp,  450. 

Wilson  v.  Mackreth.  130. 

Wilson  v.  N.  Y.  &  N.  H.  Ry.  Co., 

533. 

Wilson  v.  Pearson,  90. 
Wilson  v.  Poole,  470. 
Wilson  v.  Salteel,  260,  362. 
Wilson  Co.  v.  Lewis,  384 
Wimbish  v.  Tailbors,  425,  426. 
Wimmer  v.  Simon,  433. 
Winchester  Repeating  Arms  Co.  v. 

N.  Y.  &  N.  H.  R.  Co.,  103,  104,  105; 

Appendix,  note  B.,  p.  497. 
Winslow  v.  Cooper,  141. 
Winslow  v.  Newland.  57. 
Wiscart  v.  Dauchy,  247. 
Wiscot's  Case,  399. 
Wisheart  v.  Legrow,  200. 
Withers  v.  Birchan,  49. 
Withers  v.  Greene,  188. 
Wittick  v.  Traun,  127,  821,  451. 
Wofford  v.  Board,  476. 
Wolcott  v.  Studebaker,  385. 
Wolf  v.  Sch  lacks,  364. 
Wood  v.  Barker,  219. 
Wood  v.  Buddin,  343,  344 
Wood  v.  Butts,  438. 


Wood  v.  Colwell,  249. 

Wood  v.  Griffith,  204. 

Wood  v.  Hawksliead,  458. 

Wood  v.  Perry,  55. 

Wood  v.  Phillips,  116. 

Woodworth  v.  Knowlton,  435. 

Woodworth  v.  Woodburn,  468. 

Woolaston  v.  Webb,  428. 

Woolsey  v.  Ellen  ville,  95. 

Wooten  v.  Steffenoni,  49. 

Worthington  v.  Waring,  56,  90. 

Wright  v.  Boynton,  280. 

Wright  v.  Carpenter,  201. 

Wright  v.  Clements,  442,  44& 

Wright  v.  Dunn,  121. 

Wright  v.  Geer,  6& 

Wright  v.  Griffey,  480. 

Wright  v.  Guy,  247. 

Wright  v.  McLemore,  57,  58,  59. 

Wright  v.  Ramscot,  380. 

Wright  v.  Snedecor,  99,  100. 

Wylie  v.  Waddell,  116. 

Wyman  v.  Brown,  119,  120. 

Wyman  v.  Leavitt,  137. 

Wynehammer  v.  People,  51. 

Yahoola  River  Co.  v.  Irby,  130. 

Yates  v.  Carlisle,  463,  464, 

Yates  v.  People,246. 

Yatler  v.  Pilkin,  466. 

Yeaton  v.  Lynn,  199. 

Yeazel  v.  Alexander,  350. 

Yingling  v.  Hesson,  219. 

York  Mfg.  Co.  v.  Bessemer  Ice  Co., 

361. 

Young  v.  Cooper,  165. 
Young  v.  Gilles,  237,  23& 
Youngs  v.  Kent,  279. 
Zabriskie  v.  Smith,  40.  62,  64,  44& 
Zeidler  v.  Johnson,  440. 


PRINCIPLES  OF  PLEADING, 


CHAPTER  I. 

AUTHOR'S  INTRODUCTION. 

§  1.  The  object  of  pleading. —  In  the  course  of  administer- 
ing justice  between  litigating  parties,  there  are  two  successive 
objects, —  to  ascertain  the  subject  for  decision  and  to  decide.1 
It  is  evident  that,  towards  the  attainment  of  the  first  of  these 
results,  there  is,  in  a  general  point  of  view,  only  one  satisfactory 
mode  of  proceeding;  and  that  this  consists  in  making  each  of 
the  parties  state  his  own  case,  and  collecting,  from  the  opposi- 
tion of  their  statements,  the  points  of  the  legal  controversy. 
Thus  far,  therefore,  the  course  of  every  system  of  judicature  is 
the  same.  It  is  common  to  them  all  to  require,  on  behalf  of 
each  contending  party,  before  the  decision  of  the  cause,  a  state- 
ment of  his  case.  But,  from  this  point,  the  coincidence  be- 
tween them  naturally  ceases. 

§  2.  Definition. —  In  the  style  of  the  contending  statements 
(called  in  forensic  language  the  pleadings),  the  principles  on 
which  they  are  framed,  the  manner  in  which  they  govern  or 
affect  the  subsequent  course  of  the  cause,  and  the  degree  of 
attention  paid  to  their  construction,  the  practices  of  different 
tribunals  essentially  differ.  The  present  disquisition  relates 
only  to  that  peculiar  system  of  statement 2  established  in  the 
common  law  of  England. 

This  system,  known  by  the  name  of  Pleading?  of  remote 

1  As  to  the  further  objects  of  plead-    ward  the  Third,  who  ordained  them 
ing,  post,  %  53.  to  be  done  in  English."    Old  Dic- 

2  Part  III.    "  A  plea.—  It  signifieth    tionary,  by  F.  O.,  1701. 

in  our  common  law  that  which  either  3  See  Appendix,  note  (1).    In  a  note 

party  alledgeth  for  himself  in  court,  to  Story's  Equity  Pleading,  page  4, 

and  this  was  wont  to  be  done  in  will  be  found  several  concise  defini- 

French,  from  the  conquest  until  Ed-  tions  of  the  term  "Pleading."  Among 
1 


GROWTH    AND    RELATION    OF    SYSTEMS. 


C§3. 


antiquity  in  its  origin,  has  been  gradually  moulded  into  its 
present  form  by  the  wisdom  of  successive  ages.  Its  great  and 
extensive  importance  in  legal  practice  has  long  recommended 
it  to  the  early  and  assiduous  attention  of  every  professional 
student.1  Nor  is  this  its  only  claim  to  notice;  for,  when  prop- 
erly understood  and  appreciated,  it  appears  to  be  an  instrument 
so  well  adapted  to  the  ends  of  distributive  justice,  so  simple 
and  striking  in  its  fundamental  principles,  so  ingenious  and 
elaborate  in  its  details,  as  fairly  to  be  entitled  to  the  character 
of  a  fine  juridical  invention. 

§  3.  The  plan. —  It  is  proposed,  in  this  work,  to  collect  and 
arrange  the  principal  rules  of  pleading,  and  to  explain  their 
scope  and  tendency  as  parts  of  an  entire  system,1  But,  for  the 
sake  of  greater  clearness  and  comprehensiveness  of  view,  it 
will  be  necessary,  first,  to  give  some  idea  of  the  general  form 
and  manner  of  pleading,  and  of  its  connection  with  other  parts 


others  is  the  following:  "Pleading 
in  equity  consists  of  the  formal  writ- 
ten allegations  or  statements  of  the 
respective  parties  on  the  record  to 
maintain  the  suit  or  to  defeat  it,  of 
which,  when  contested  in  matters  of 
fact,  they  propose  to  offer  proofs,  and 
in  matters  of  law  to  offer  arguments 
to  the  court."  Heacock  v.  Hosrner, 
109  111.  249. 

Special  and  general  pleading. — 
There  is  some  confusion  as  to  the  use 
of  the  terms  "  general  "  and  "  spe- 
cial "  pleading,  and  some  writers  sup- 
pose that  the  reforms  in  procedure 
had  for  one  object  to  do  away  with 
special  pleading.  Special  pleading 
consists  in  alleging  at  large  the  spe- 
cific facts,  while  general  pleading  is 
made  up  of  common  counts  and  gen- 
eral denials.  See  post,  p.  24,  note  1. 
Lord  Brougham  (in  1828)  said  in  his 
speech  on  law  reform  that  the  object 
was  to  restore  special  pleading  to  its 
pristine  simplicity. 

4  "  So  long  as  written  pleadings  re- 
main, the  best  masters  of  the  art  will 
be  they  who  can  inform  (imbue)  the 
apparent  license  of  the  new  system 


with  that  spirit  of  exactness  and 
self-restraint  which  flows  from  a 
knowledge  of  the  old."  Sir  Montague 
Crackenthorpe,  Address  to  American 
Bar  Association,  1896.  There  can  be 
no  question  that  the  study  of  com- 
mon-law pleading  affords  refined  and 
keen  intellectual  exercise,  and  those 
who  believe  that  "  order  is  Heaven's 
first  law "  will  insist  with  Sir  Mon- 
tague Crackenthorpe  that  it  is  still 
of  practical  benefit.  Harvard  Law 
Review,  voL  X,  pp.  238,  289. 

1  In  this  edition  an  effort  will  be 
made  to  show  that  this  entire  sys- 
tem spoken  of  by  our  author  is,  in 
all  its  essential  objects  and  principles, 
not  only  an  entire  system,  but  a 
universal  system  at  the  present  time 
applied  in  all  American  jurisdictions 
to  every  form  of  action,  equitable  as 
well  as  legal,  and  this  whether  the 
procedure  is  under  the  code,  the  com- 
mon law  or  practice  acts. 

Is  it  not  obvious  that  every  effort 
at  abolishing  forms  which  at  the 
same  time  preserves  the  substance  of 
the  older  logical  system  tends  to  re- 
duce the  whole  to  this  one  system? 


§3.]  GEOWTH   AND   EELATION   OF   SYSTEMS.  3 

of  the  suit.1  The  following  chapter  shall  therefore  be  devoted 
to  a  summary  and  connected  account  of  the  whole  proceedings 
in-  an  action.2 

[To  the  scope  of  the  above  plan  it  has  been  deemed  useful  to 
add  the  chapter  on  "  Parties  and  the  choice  of  remedies,"  in 
order  that  the  reader  may  have  a  clear  grasp  of  all  the  essen- 
tial features  of  procedure  in  a  legal  action.] 

1  The  reader  will  observe  that  the  and  "The  Proceedings  in  an  Action," 

subject  of  "  Pleading,"  proper,  is  re-  are  collateral  and  auxiliary  to  the 

served  until  a  later  chapter  of  the  main  design, 

book.    The  parts  of  the  book  devoted  2  Part  II. 
to  "Parties,"  "  Election  of  Remedies  " 


EDITOR'S  INTRODUCTION. 

DEVELOPMENT   AND   RELATION   OF   SYSTEMS.1 

§  4.  Utility  of  scientific  pleading. —  That  the  science  of 
special  pleadings  has  been  neglected  of  late  no  one  can  deny.* 
This  result  is  due  in  a  measure  to  an  idea  which  prevails  in 
many  localities  that  the  system  of  procedure,  commonly  called 
code  procedure,  has  so  simplified  the  mode  of  conducting  a 
legal  controversy  through  the  courts,  that  the  subject  of  plead- 
ing may  readily  be  postponed  until  a  case  presents  itself  to- 
the  youthful  tyro.  No  greater  error  ever  deluded  the  unwary 
or  indolent  lawyer,  to  his  client's  ruin,  and  millions  of  money 
have  been  lost  in  a  single  case,3  simply  and  solely  on  account 
of  the  disregard  of  the  simple  rules  of  pleading,  which  it  is  the 
purpose  of  this  book  to  make  clear.4 

The  administration  of  law  between  litigants  can  no  more 
be  understood  or  applied  in  daily  practice  without  a  clear  un- 
derstanding of  the  rules  of  pleading,  than  one  can  become  a 
finished  musician  without  mastering  the  scale,  and  acquiring,, 
by  patient  study  and  practice,  all  the  technique  of  the  art. 

When  we  witness  a  great  legal  battle  in  progress  between 
two  skilful  lawyers,  the  movements  are  so  easy  that  the  whole 
seems  too  natural  to  have  been  the  result  of  careful  prepara- 

JThe  student  of  procedure  is  re-  the  seven  years  which  have  inter- 
ferred  to  the  editor's  introduction  to  vened  have  seen  a  marked  change, 
the  subject  of  "  Actions,"  in  which  and  the  subject  of  procedure  now  re- 
the  evolution  of  the  Anglo-American  ceives  the  attention  which  its  im- 
system  of  procedure,  legal  and  equi-  portance  and  utility  demand.  See- 
table,  from  the  ancient  rude  begin-  Annual  Address,  Hon.  F.  M.  Finch, 
ning  to  the  modern  reformed  and  re-  Pres.  N.  Y.  State  Bar  Ass'n,  1901. 
fined  state,  is  examined  with  great  3  In  Reynolds  v.  Stockton,  140  U.  S. 
care  and  in  the  light  of  such  learning  254,  the  judgment  was  held  void  col- 
on the  subject  as  was  accessible  to  laterally  because  broader  than  the 
him  at  the  beginning  of  the  year  issue.  See  also  Waterman  v.  Law- 
1900.  Andrews'  Am,  Law,  pp.  1025-  rence,  19  CaL  210;  Munday  v.  Vail,  34 
1061.  N.  J.  L.  418;  1  Cooley's  Black.,  Int., 

2  The  truth  of  the  statement  when  xxviL 

made  was  universally  admitted,  but  4  Warren's  Law  Studies,  198. 


§  5.]  DEVELOPMENT    OF   SYSTEMS.  5 

tion ;  but,  if  they  are  pilots  safe  to  be  trusted,  every  fact  ad- 
duced, every  argument  presented,  is  controlled  by  and  relates 
to  the  issue  they  have  formed  before  the  trial  began.  The 
general  prepares  his  plan  of  battle  in  his  quarters;  the  lawyer 
who  wins  prepares  his  line  of  battle  carefully  in  his  office ;  and 
the  parties,  judge,  jury  and  lawyers  are  all  controlled  by  this, 
and  a  judgment  or  decree  outside  of  the  case  presented  by  the 
issue  is  erroneous  or  void. 

Nor  is  pleading  important  only  to  the  trial  lawyer.  Trial 
lawyers  make  records,  but  the  counselor  must  pass  upon  them 
as  they  appear  in  titles.  It  is  claimed,  and  is  doubtless  true, 
that  practically  all  real  property  passes  through  the  courts  once 
in  every  thirty  years;  that  is,  a  judicial  decision  is  involved 
in  every  title,  in  the  shape  of  a  judicial  sale  or  a  decree  estab- 
lishing a  trust,  or  a  decree  in  a  partition  proceeding,  etc.,  in 
the  course  of  thirty  or  forty  years;  and  there  are  many  in- 
stances where,  after  the  lapse  of  many  years  (in  a  recent  case 
involving  a  large  ranch,  forty  years),1  innocent  purchasers  have 
been  dispossessed,  and  left  without  remedy,  simply  and  solely 
because  they  purchased  at  a  judicial  proceeding  when  the  law- 
yers and  judge  omitted  to  make  and  observe  the  proper  alle- 
gation in  the  pleadings,  and  the  lawyers  who  passed  upon  the 
title  failed  to  detect  the  error.  These  observations  apply  with 
equal  force  to  code  and  common  law,  as  the  examples  cited  will 
show. 

No  more  need  be  said  to  impress  upon  the  thoughtful  mind 
the  importance  of  a  careful  study  of  the  rules  of  pleading;  but 
the  utility  of  pleading,  as  a  means  of  saving  time  and  money 
for  the  client,  the  time  of  the  court,  and  the  expense  of  an  actual 
trial,  wherein  lies  the  chief  expense  of  a  lawsuit,  will  be  apparent 
upon  slight  consideration.  In  many  cases  the  dispute  is  as  to 
the  law.  In  all  such  cases,  by  proper  pleading,  the  question 
may  be  left  to  the  court  for  decision,  and  either  party  may  ap- 
peal. In  other  cases,  the  issue  may  be  narrowed  so  as  to  save 
much  time  upon  the  trial.  This  much  upon  the  importance  of 
•correct  pleading. 

§  5.  The  place  of  pleading  in  jurisprudence.— Pleading  is 
but  one  member  of  the  body  of  the  law.  Substantive  law,  so 
called,  and  the  law  of  procedure  are  not  separate  and  distinct 
1  See  Vanfleet's  Collateral  Attack,  §§  750,  751. 


6  DEVELOPMENT   OF   SYSTEMS.  [§  & 

systems  and  should  not  be  so  regarded.  They  are  but  parts  of 
one  system.  Neither  can  have  any  proper  force  or  vigor  with- 
out the  other.  In  vain  is  it  to  declare  rights  if  there  are  no- 
means  of  enforcing  them.  Useless  and  cumbersome  would  that 
form  of  procedure  be  which  was  not  framed  for  and  fitted  to- 
the  rights  it  was  designed  to  enforce  and  the  wrongs  it  was- 
in tended  to  redress.  The  substantive  law  is  made  to  declare 
rights  and  define  wrongs,  and  the  law  of  procedure  is  so  de- 
signed as  to  furnish  protection  to  every  right  and  punish  every 
wrong. 

§  6.  Classification  of  English  law. —  "Whatever  controversies- 
may  have  existed  in  the  past  in  reference  to  the  influence  of  the 
Roman  law  upon  the  character  and  institutions  of  the  Saxons- 
with  whom  they  mingled,  there  is  no  longer  any  doubt  that 
the  Roman  occupation  of  Britain  for  a  period  of  over  four  cen- 
turies left  indelible  traces  upon  the  characters  and  institutions 
of  these  people.  Britain  was  christianized  under  the  Roman 
influence,  and  was  subject  to  the  Roman  law;  in  short,  there 
was  a  commingling  of  blood,  of  religion,  of  law.  But  irrespect- 
ive of  this,  the  study  of  the  Roman  law  in  late  centuries  exerted 
a  still  more  powerful  influence  upon  the  legal  institutions  of 
England.1 

The  arrangement  and  principles  of  the  Roman  law  were  ob- 
served by  Bracton,  the  first  treatise  in  the  English  law^  which 
can  be  said  to  be  pervaded  by  a  system.  Hale's  Analysis  of 
the  English  law  is  based  upon  the  principles  observed  by  Gaius. 
This  analysis  of  Hale  was  recognized  by  Blackstone  as  the  most 
perfect  outline  of  the  English  law  ever  before  devised.  He  felt 
compelled  to  and  did  adopt  it  as  the  basis  of  the  outline  upon 
which  he  constructed  his  Commentaries  of  the  Law  of  England.2 

English  law  has,  since  that  time,  been  treated  as  it  related 
to  personal  relations,  to  property  rights,  and  the  law  of  actions, 
or  procedure.  The  law  of  personal  relations  furnishes  us  with 
those  rules  which  govern  our  actions  as  magistrate  and  people,, 
and  in  our  personal  relations  as  individuals.  The  law  of  things- 
or  property  declares  the  rules  which  shall  govern  the  owner- 

1  See  P.  &  M.  Hist,  of  Eng.  Law,  origin  and  differences  are  critically 
Int.,  p.   xxxi;    Address    of   Sir  M.  examined   in   Andrews'  Am.   Law,. 
Crackenthorpe,  Am.  Bar  Ass'n,  1896.  chs.  II  to  V. 

2  These    classifications    and  their 


§  7.]  .DEVELOPMENT   OF   SYSTEMS.  f 

ship,  enjoyment  and  disposal  of  things.  The  law  of  procedure 
points  out  how  these  rights  shall  be  protected,  and  any  wrongs 
against  them  judicially  redressed. 

The  subjects  of  Pleadings,  Practice  and  Evidence  comprise 
what  is  commonly  called  the  law  of  procedure.  The  line  of  de- 
rnarkation  between  substantive  law  and  procedure  is  not  clearly 
drawn  by  text-writers.  Each  has  its  appropriate  sphere,  but  it 
is  a  common  fault  with  modern  text-writers  to  pay  but  little 
regard  to  the  outlines  or  analysis  which  furnish  the  boundary 
lines  between  the  various  subjects  of  the  law.1  This  state  of 
affairs  probably  results  from  -the  fact  that  until  recently  we 
have  had  no  accurate  outline  of  our  law.  For  instance,  James 
Eitzjames  Stephen2  regards  the  question,  what  may  be  proved 
under  a  particular  issue,  as  belonging  to  the  domain  of  sub- 
stantive law  and  pleadings.  So  he  regards  presumptions  as  be- 
longing to  substantive  law.  Thus  he  narrows  very  materially 
the  scope  of  the  law  of  evidence  as  treated  by  Taylor  or  Green- 
leaf.  Practice  is  that  branch  of  procedure  which  points  out  in 
what  manner  the  various  steps  are  to  be  taken.  Pleading  relates 
to  the  orderly  presentation  upon  the  record  of  the  contention 
of  the  respective  parties  in  relation  to  the  subject-matter  of  the 
controversy. 

§  7.  Modern  reforms  in  procedure.8 — The  last  century 
and  a  half  has  been  prolific  in  reforms  in  all  the  great  depart- 
ments of  jurisprudence.  It  is  asserted  by  one  of  the  most  pro- 
found lawyers  of  the  Revolutionary  period  that  the  science  of 
government,  properly  so  called,  never  existed  on  the  other  side 
of  the  Atlantic  before  the  American  Revolution,4  the  basis  of 
the  assertion  being  that  rulers  were  occupied  with  the  art  of 
obtaining  and  perpetuating  power,  giving  themselves  little 
or  no  thought  in  regard  to  the  true  science  of  government  as 
it  is  now  understood.  For  instance,  Bacon  was  content  to 
say,  "  I  shall  hardly  consent  that  the  king  shall  be  called  only 
our  rightful  sovereign  or  our  lawful  sovereign,  but  our  natural 
liege  sovereign.5  ...  Concerning  government,  it  is  a  part 

1  See  Crackenthorpe's  Address,  re-       4 1  Wilson's  Works,  20. 

f erred  to  supra.  5  Argument  in  Post  Nati  Scotland, 

2  Stephen's  Dig.  Ev.  Bacon's  Works,  voL  2,  169. 

3  See  resume  of  reforms  in  proced- 
ure, Andrews'  Am.  Law,  p.  1056. 


8  DEVELOPMENT   OF    SYSTEMS.  [§  7. 

of  knowledge,  secret  and  retired  in  both  these  respects  in  which 
things  are  deemed  secret,  for  some  things  are  secret  because 
they  are  hard  to  know,  and  some  because  they  are  not  fit  to 
utter."1  And  Blackstone  tells  us  that  Elizabeth  herself  was 
wont  to  direct  her  parliaments  to  abstain  from  discussion  of 
matters  of  state,  admonishing  them  that  they  ought  not  to  deal, 
to  judge  or  to  meddle  with  her  majesty's  prerogative  royal.2 
And  while  Blackstone  was  not  an  open  advocate  of  the  theory 
of  the  divine  right  of  kings,  by  his  definition  of  law,  and  his 
reasons  for  it,  he  argued  himself  into  that  position  in  spite  of 
himself.3 

We  are  not  interested  in  this  inquiry  further  than,  it  throws 
light  upon  the  development  of  the  law  of  procedure  and  the 
institution  of  tribunals  for  administering  justice  with  which  we 
are  now  familiar  under  the  denomination  of  the  courts  of  law 
and  chancery. 

The  most  noteworthy  instance  of  law  reform  which  has  been 
instituted  on  this  side  of  the  Atlantic  since  the  formation  of 
the  federal  constitution  is  in  the  field  of  procedure,  and  the 
example  of  reformed  procedure  most  frequently  cited  is  the 
New  York  code,  the  principal  features  of  which  have  been 
adopted  in  many  of  the  states.  There  has  not  been  an  entire 
unanimity  of  opinion  as  to  the  merits  of  this  code  among  those 
who  advocate  codification.  For  instance,  Mr.  R.  T.  Barton, 
one  of  the  committee  on  codification  of  the  Virginia  State  Bar 
Association,  in  his  remarks  upon  the  relative  merits  of  the 
various  codes  in  use  in  different  states,  remarked  that  "  The 
modern  demand  for  reform  is  set  forth  in  the  English  code,  the 
Connecticut  code  and  in  the  Massachusetts  code."  "I  have 
found  the  New  York  code  full  of  dangerous  pitfalls.  That 
state  did  not  adopt  the  new  code,  but  grafted  on  some  portions 
of  the  code  prepared  by  Mr.  Field  to  the  old  method.  The 
new  wine  has  burst  the  old  bottle.  The  code  of  David  Dudley 
Field  was  never  adopted  in  New  York  as  a  whole,  but  extracts 
from  it  have  been  sewed  onto  the  old  code,  and  the  New  York 
code  is  an  example  to  be  avoided." 4  This  example,  however, 

1  Advancement  of  Learning,  Ba-  3  Hammond's  Black.,  p.  Ill;  1  Wil- 
con's  Works,  vol.  2,  238.  son's  Works,  pp.  65-85. 

2 1  Black.  Com.  23a  4  Report  Fifth  Annual  Bar  Associa- 

tion, 1893,  p.  28. 


§  8.]  DEVELOPMENT   OF   SYSTEMS.  9 

it  is  claimed,  has  been  followed  in  some  twenty-eight  states 
and  is  often  held  up  as  an  example  of  perfect  procedure;  but 
this  committee,  after  a  careful  investigation  within  the  last 
year,  reports  that  this  is  an  example  to  be  avoided.  It  is  safe, 
however,  to  assert  that  merely  the  word  "code,"  or  "codifica- 
tion," does  not,  of  itself,  render  anything  to  which  it  is  applied 
simple  and  clear;  there  is  no  magic  in  the  word  "code."  There 
is  an  essential  difference  between  codes. 

There  is  also  a  decided  disagreement  of  opinion  between  the 
advocates  of  a  code  and  those  who  prefer  to  practice  under  the 
reform  system  of  common-law  pleading  in  vogue  in  those  states 
which  are  yet,  to  distinguish  them  from  the  code  states,  called 
common-law  states.  One  is  not  to  suppose  that,  because  a  state 
is  still  denominated  a  "common-law  state,"  the  procedure  of  the 
courts  in  that  state  is  marked  by  the  same  rigor  and  techni- 
calities which  existed  in  the  ancient  common-law  procedure. 

§  8.  The  relation  of  common-law  pleading  to  existing  sys- 
tems1 is  a  question  of  importance  to  every  practical  lawyer  as 
well  as  to  students  of  the  science  of  right  pleading.  For  many 
years  after  the  adoption  of  the  New  York  code  the  idea  was 
maintained  that  the  common-law  system  of  pleading  was  not 
abolished,  but  was  merely  modified  by  destroying  the  distinc- 
tion between  forms  of  action ;  but  at  a  later  period  an  impres- 
sion obtained  that  the  effect  of  codification  was  to  abolish  the 
common-law  system  of  pleading.  Thus,  one  who  is  described 
as  a  most  eminent  advocate  of  the  code,  in  fact  a  judge  in  a 
code  state,  in  a  letter  written  to  another  like-minded  with 
himself,  says,  in  reference  to  the  provision  commonly  found  in 
the  codes,  "  that  the  forms  of  actions  and  suits  heretofore  exist 
ing  are  abolished,  and  hereafter  there  shall  be  but  one  form  of 
action  for  the  enforcement  or  protection  of  private  rights,  and 

1  Using  the  word  "  pleading  "  in  its  of  the  abuses  did  not  affect  the  es- 

strict  technical  sense,  is  there  any  sentials  of  the  system.  The  essential 

material  difference  in  the  mode  of  rules  as  they  were  formulated  by  Ste- 

allegation?  As  we  proceed  it  will  be-  phen  are,  it  is  believed,  quite  as  appli- 

coine  constantly  more  plain  that  a  cable  under  existing  codes  and  prao 

fact  well  alleged  under  the  common-  tice  acts  as  ever  they  were;  and  this 

law  rules  will  be  well  alleged  under  is  so  simply  because  they  are  rules  of 

the  code  or  in  equity,  and,  vice  versa,  logic  formulated  as  guides  as  to  how 

that  the  change  of  the  forms  of  an  to  allege  facts,  and  are  not  affected 

action  did  not  affect  the  rules  of  alle-  by  the  abolition  of  forms  of  action, 
gation,  that  the  modification  of  some 


10  DEVELOPMENT   OF    SYSTEMS.  [§  8. 

the  redress  or  prevention  of  private  wrongs,  which  shall  be 
called  a  civil  action: "     "  Here  in  five  lines  was  a  complete  wip- 
ing out  of  the  accumulated  wisdom  of  ages."   The  light  in  which 
the  reform  procedure  was  viewed  by  its  opponents  in  the  ear- 
lier day  is  very  well  illustrated  by  the  remarks  of  Justice  Grier 
in  a  case  pending  in  the  supreme  court  of  the  United  States, 
which  came  up  from  Iowa,  wherein  he  compares  what  he  terms, 
the  simplicity  and  certainty  of  the  common-law  procedure  with 
the  delay,  uncertainty,  perplexity  and  vexation  occasioned  by 
this  new  system  of  pleading,  as  practiced  in  that  case.     The 
common  law,  he  says,  wisely  commits  the  decision  of  questions 
of  law  to  the  court,  and  the  decision  of  questions  of  fact  to  a 
jury,  and  it  requires  that  controversies  should  be  submitted  in 
such  a  way  as  to  present  one  or  more  integral  propositions  of 
law  and  fact.1     This  is  done  in  the  shape  of  allegations,  called 
pleadings.     These  should  distinctly  and  succinctly  state  the 
nature  of  the  wrongs  complained  of,  the  remedies  sought,  and 
the  defenses  set  up.     The  end  proposed  is  to  bring  the  matter 
to  one  or  more  points,  simple  and  unambiguous.     He  notices- 
the  excessive  technicality  introduced  by  astute  logicians,  which 
we  will  notice  further  on ;  the  cumbersome  forms  and  fictions, 
which,  in  an  earlier  day,  had  brought  the  system  of  special 
pleading  into  deserved  disrepute.2  But  in  modern  times  it  had 
been  modified,  Or  trimmed  of  its  excrescences,  and  the  plead- 
ings in  every  form  of  action  have  been  so  completely  reduced 
to  simple,  clear  and  unambiguous  forms,  that  the  merits  of  the 
case  are  never  submerged  under  folios  of  special  demurrers  (as- 
was  the  case  in  the  suit  he  was  deciding),  alleging  errors  in 
pleadings.     "This  system,  matured  by  the  wisdom  of  ages,, 
founded  on  the  principles  of  truth  and  sound  reason,  has  been 
ruthlessly  abolished  in  many  of  the  states,  who  have  substituted 
in  its  place  the  suggestions  of  sciolists,  who  invent  new  codes 
and  systems  of  pleading.   But  this  attempt  to  abolish  all  species- 
and  establish  a  single  genus  is -beyond  the  power  of  legislative 
omnipotence;  they  cannot  compel  the  human  mind  not  to  dis- 

1  This  fundamental  fact  requires  a  and  the  common-law  system  of  plead- 

system  of  pleading  which  will  sep-  ing  is  a  consequence  of  or  necessary 

arate  these  two  elements  (disputed  answer  to  the  demand.  See  Andrews* 

law  and  disputed  fact)  from  the  com-  Am.  Law,  p.  1110,  note  2. 

plex  circumstances  of  a  transaction,  2  3  Black.  Com.  *408,  409. 


§  8.]  DEVELOPMENT   OF   SYSTEMS.  11 

tinguish  between  things  that  differ.  The  distinction  between 
the  forms  of  action  for  different  wrongs,  requiring  different 
remedies,  lies  in  the  nature  of  things.  It  is  absolutely  insep- 
arable from  the  correct  administration  of  justice  in  the  com- 
mon-law courts.  The  result  of  these  experiments,  so  far  as 
they  have  come  to  our  knowledge,  has  been  to  destroy  the  cer- 
tainty and  simplicity  of  pleading,  and  introduce  on  the  record 
an  endless  wrangle  in  writing,  perplexing  to  the  court,  delay- 
ing and  impeding  the  administration  of  justice."1 

There  is  no  advocate  of  the  code  to-day  who  would  pretend 
that  codification  swept  away  the  accumulated  wisdom  of  ages 
in  reference  to  the  subject  of  special  pleading. 

The  modern  view  corresponds  with  the  express  provision  mado 
in  many  of  the  codes,  that,  except  so  far  as  repealed  or  modified, 
the  rules  of  common-law  pleading  are  to  be  observed  by  pleaders 
under  the  reformed  system.2  Thus,  Mr.  Justice  Eodman,  in  a 
comparatively  recent  case,  says:  "This  code  of  New  York, 
which  in  this  respect  has  been  almost  literally  copied  in  our 
own  (North  Carolina),  enacts  rules  of  pleading  which  essen- 
tially, and  in  all  the  respects  in  which  the  common-law  system 
is  distinguished  from  the  chancery  system  of  ascertaining  the 
issue,  are  those  of  the  common  law.  This  may  be  seen  by  com- 
paring the  rules  of  the  code  with  those  given  by  Stephen.  By 
these  the  parties  are  or  may  be  compelled  to  come  to  one  or 
more  issues  decisive  of  the  case,  and  although  in  practice  it 
often  happens  that  the  desirable  result  is  not  attained,  it  is 
from  negligence  in  the  pleaders  and  indulgence  in  the  courts, 
and  not  from  anything  in  the  rules  designed  to  produce  such  an 
abortive  result."  3  Judge  Phillips,  in  his  admirable  treatise  on 
Code  Pleading,  makes  the  following  statement,  which  is  liter- 
ally true,  and  which  shows  that  in  mastering  the  common  law 
rules  one  is  not  acquiring  a  knowledge  of  things  obsolete,  but 


McFaul  v.  Ramsey,  20  How.  fictitious  pleading  which  did  not  give 

523  (1857).  notice  of  the  real  claim  or  defense. 

2  Indeed,  one  of  the  prime  objects  See  Pomeroy,  Code  Reni.  (3d  ed.)  728; 

of  the  code  coincided  with  the  prin-  McKyring  v.  Bull,  16  N.  Y.  297. 

cipal  object  of  the  reforms  in  proce-  3  Keener  v.  Finger,  70  N.  C.  35; 

dure  which  resulted  in  the  Hilary  Stevens  v.  Mayor,  84  N.  Y.  296.    See 

Rules,  4  Wm.  IV.,  of  which  our  au-  question  examined  at  large  in  Au- 

thor was  one  of  the  originators.    The  drews'  Am.  Law,  §  663. 
object  was  to  put  an  end  to  general 


12  DEVELOPMENT   OF    SYSTEMS.  [§  9. 

of  the  living  principles  of  the  science.  Speaking  of  common- 
law  pleading  he  says:  "Its  chief  distinguishing  excellence  is 
the  complete  separation  of  law  and  fact,  not  only  in  the  plead- 
ings, but  in  the  trial.  It  formulated  a  system  of  general  rules 
of  statement  and  of  construction  that  have  not  been  excelled, 
and  that  cannot  be  dispensed  with" 1 

§  9.  The  identity  of  the  equity  and  common-law  rules  and 
principles  of  pleading. —  Lube  prepared  his  treatise  on  equity 
pleading  upon  the  theory  that  there  was  a  very  close  analogy 
and  similarity  between  the  rules  and  principles  of  equity  and 
common-law  pleading,  and  in  many  cases  it  was  made  clear 
that  there  was  not  simply  an  analogy  and  similarity,  but  that 
the  rules  when  formulated  w.ere  identical. 

Formerly  it  was  regarded  as  of  small  importance  in  chan- 
cery pleading  whether  the  issues  were  pointed  out  by  the  plead- 
ers; but  when  the  custom  of  formulating  issues  in  analogy  to 
the  common-law  practice  became  established,  it  followed  as  a 
natural  result  that  the  principles  upon  which  the  pleader  pro- 
ceeded were  the  same  as  those  adopted  by  the  common-law 
pleaders,  and  long  before  the  adoption  of  the  New  York  code 
it  was  the  rule  in  all  pure  bills  for  relief  that  the  same  mode  of 
alleging  the  essential  facts  should  be  adopted  in  chancery  as  at 
law?  By  the  provision  of  that  code  the  rules  of  pleading  are 
the  same  in  legal  and  equitable  actions.3 

Van  Santvoord,  in  his  treatise  on  Pleading  under  the  New 
York  Code,  states  the  old  law  quite  clearly:  "Under  the  old 
practice  in  chancery  a  bill  of  complaint  might  have  a  twofold 
object  ^-discovery  and  relief.  A  bill  for  discovery  and  relief, 
in  addition  to  the  grounds  for  relief,  might  state  matters  of 
evidence  which  were  material  in  establishing  the  main  charge 
or  in  determining  the  nature  and  extent  of  the  relief;4  but  a 
bill  merely  for  relief  should  contain  allegations  of  fact  entitling 
the  party  to  it  substantially  in  the  same  form  as  averments  in  an 
action  at  law?  This  was  the  old  rule  of  equity  pleadings.6 
The  pleadings  should  consist  of  allegations  of  facts,  stated  with 

1  Phillips'  Code  PL  145-46.  4  Mechanics'  Bank  v.  Levy,  3  Paige, 

2  Hood  v.  Inman,  4  Johns.  Ch.  437;    606. 
Chambers  v.  Chalmers,  4  Gill  &  J.        5Id. 

437,  23  Am.  Dec.  579.  6  Hood  v.  Inman,  4  Johns.  Ch.  437; 

3Bayles'  PL  7;  Millikin  v.  Carys,  5  Chambers  v.  Chalmers,  4  Gill  &  J. 
How.  Pr.  272.  441,  23  Am.  Dec.  591. 


§  9.]  DEVELOPMENT   OF   SYSTEMS.  13 

as  much  brevity  and  precision  as  possible,  not  of  inference  or  ar- 
gument^ In  Mechanics'*  Bank  v.  Levy,  the  chancellor  says: 
'  The  allegations  in  the  bill,  so  far  as  the  question  of  the  com- 
plainant's right  to  the  relief  is  concerned,  are  substantially  in 
the  same  form  as  the  averments  in  a  declaration  at  law,  and 
the  pleader  must  state  his  client's  cause  of  action  in  such  a 
manner  that  the  main  facts  upon  which  his  right  to  relief  de- 
pends may  be  put  in  issue  and  tried?  So  much  in  respect  to 
the  question  of  relief;  but  the  complainant  was  also  entitled 
to  a  discovery,  and  accordingly,  under  the  old  equity  system, 
he  might,  to  quote  from  the  same  opinion,  '  state  any  matters 
of  evidence  in  his  bill  which  may  be  material  in  establishing 
the  main  charge,  or  in  ascertaining  the  nature  or  kind  of  re- 
lief proper  to  be  administered,  and  may  interrogate  the  defend- 
ant as  to  these  matters.' 

"  The  discovery  is  now  abolished  by  the  code.  The  pleading  can 
no  longer  be  used  as  a  method  of  examination  or  to  obtain  evi- 
dence in  aid  of  the  relief  sought.  Nothing  is  left  of  the  old 
equity  mode  of  pleadings  but  the  simple  allegations  of  facts 
material  to  the  relief  sought,  and  which  go  to  establish  the 
plaintiff's  case;  and  whether  these  facts  were  one  or  more,  they 
were  required,  as  we  have  seen,  even  under  the  old  equity  sys- 
tem, to  be  set  forth  substantially  the  same  as  averments  at  law, 
and  were  required  to  be  such  as  might  be  lput  in  issue  and 
tried.'"* 

Discovery  falling  into  desuetude  in  common-law  states. —  The 
practical  effect  of  the  statutes  which  exist  in  all  of  the  states, 
removing  disabilities  of  parties  and  interested  persons  from  tes- 
tifying as  witnesses,  is  to  throw  the  bill  of  discovery  into  dis- 
use,3 for  the  reason  that  it  is  but  rarely  necessary  to  resort  to 
its  use,  and  while  in  practice  bills  of  discovery  are  not  unknown, 
or  obsolete,  they  are  quite  rare. 

The  constitutional  requirement  that  the  right  to  a  jury  trial 
in  common-law  cases  must  be  preserved,  and  that  a  jury  trial 
is  not  a  requisite  in  equity  cases,  accounts  for  all  the  difference 

1  Hood  v.  Inman,  supra.  removing  the  disabilities  of  parties 

2  Van  Santvoord's  PI.  65,  66.  and    interested    persons,    the   title 

3  This  was  clearly  recognized  by  being  "  An  act  to  dispense  with  the 
the  draftsman  who  framed  the  first  bill  of  discovery."    Laws  of  Illinois, 
bill  passed  by  the  Illinois  legislature 


14:  DEVELOPMENT   OF    SYSTEMS.  [§  13. 

in  form  which  remains  between  chancery  and  common-law 
pleading.  The  first  ]STew  York  code  necessarily  provided  for 
this  in  a  manner  to  preserve  all  of  the  ancient  differences,  but 
did  not  increase  them,  and  this  model  h°.s  controlled  elsawhere.1 
The  codes  expressly  contemplate  the  framing  of  issues. 

The  relation  between  law  and  equity  pleading  is  not  so  well 
understood.  Lawyers  and  text-writers  do  not  sufficiently  distin- 
guish between  the  forms  of  action  and  machinery  of  procedure 
and  the  rules  and  principles  of  pleadings,  properly  so  regarded, 
and  so  the  idea  has  obtained  that  the  principles  and  rules  of 
pleading  are  as  divergent  as  the  practice  and  formal  instruments 
in  which  these  pleadings  are  set  forth.  Such,  it  is  apprehended, 
is  not  the  case.  Tyler  says:  "At  an  early  stage  in  the  develop- 
ment of  the  equity  jurisdiction  of  the  court  of  chancery  in  Eng- 
land, the  pleadings  in  equity  conform  very  nearly  to  those  at  the 
common  law,"2  and  notwithstanding  the  difference  in  the  ma- 
chinery of  equity,  and  the  discovery  branch  of  all  chancery  suits, 
the  true  principles  of  pleading,  so  far  as  any  were  established 
and  stated,  were  the  same  as  those  used  in  the  law  courts.  Tyler 
says:  "  The  bill  must  state  the  case  in  direct  and  positive  terms 
and  with  reasonable  certainty.  Allegations  must  be  positive 
and  not  by  way  of  recital,  and  must  be  of  facts  only.  .  .  . 
The  well-established  principles  of  equity  pleading  require  noth- 
ing more  than  a  simple  statement  of  the  plaintiff's  case  with  a 
prayer  for  relief  and  process.  .  .  ,  The  defendant  must 
answer  •  .  .  positively  and  directly  and  not  by  way  of  ar- 

1  Mason,  J.,  in  Hill  v.  McCarthy,  3  fied  question  of  fact  therein  to  be 

N.  Y.  Code  R.  49,  says:    "The  two  tried  by  a  jury,  or  shall  refer  it  as 

hundred  and  fifty-third  section  of  provided  by  sections  270,  271.   It  will 

the  code  provides  that  whenever  an  readily  be    perceived    upon   a  mo- 

issue  of  fact  shall  be  joined  in  an  ment's  reflection  that  the  effect  of 

action  for  the  recovery  of  money  sections  253  and  254  is  to  throw  the 

only,  or  of  specified  personal  or  real  trial  of  all  questions  of  fact  in  the 

property,  it  must  be  tried  by  a  jury,  old  common-law  actions  upon  the 

unless  a  jury  trial  be  waived  as  pro-  court  and  jury;   and  at  the  same 

vided  in  section  266,  or  a  reference  time  to  throw  the  trial  of  the  whole 

be  ordered  as  provided  in  sections  class  of  equity  suits  upon  the  court 

270,  271;  and  the  two  hundred  and  without  a  jury,  unless  for  some  spe- 

fifty-fourth    section    provides    that  cial  reason  the  court  shall  order  such 

every  other  issue  of  fact  shall   be  issue  to  be  tried  by  a  jury." 

tried  by  the  court,  unless  the  court  2  Mitford,  Eq.  PL  (Tyler's  ed.),  In- 

shall  order  the  whole  or  some  speci-  troduction,  p.  83. 


§§  10,  11.]  DEVELOPMENT   OF   SYSTEMS.  15 

gument." 1  These  are  the  principles  which  govern  the  plead- 
ings in  legal  actions. 

§  10.  The  dependence  of  code  pleading  upon  the  principles 
of  the  common-law  system  is  no  longer  a  disputed  or  debatable 
point  in  American  jurisprudence.  Bliss  in  his  treatise  on  Code 
Pleading  says:  "It  is  assumed  that  the  student  of  the  code  is 
familiar  with  the  common-law  and  equity  systems  of  pleading 
If  not,  he  is  groping  in  the  dark,  and  much  which  is  offered 
(in  his  book)  will  escape  his  apprehension.  This  knowledge  is 
deemed  essential  .  .  .  because  the  foundation  idea  of  plead- 
ing is  not  changed." 2 

§  11.  The  rules  of  pleading  not  dependent  on  forms  of  ac- 
tion.— We  may  now  appreciate  precisely  at  what  point  we  have 
arrived  in  the  process  of  reforming  procedure ;  and  may  appreci- 
ate what  is  meant  by  the  expressions"  common  law,"  "equity  " 
and  "  code  pleading."  We  can  now  readily  understand  that  the 
older  common-law  system  has  been  amended  and  stripped  of 
the  verbiage  and  technicality  which  the  narrow-mindedness 
and  subtlety  of  the  pleaders  introduced;  that  equity  pleading 
has  been  very  materially  changed,  and  one  of  its  essential 
branches  rendered  almost  obsolete  by  the  abolition  of  the  bill 
of  discovery  in  some  jurisdictions  and  its  partial  disuse  in 
others;  and  that  the  code  or  codes  of  procedure  did  not  abolish 
the  essential  rules  and  principles  of  pleading  and  introduce  a 
new  system;  that  the  essential  rules  of  English  pleading  as  for- 
mulated by  Stephen  existed  without  reference  to  any  special 
forms  of  action,  but  were  applicable  to  all  forms,  and  the  aboli- 
tion of  forms  of  action  did  not  necessarily  affect  the  system  of 
allegation.  In  short,  the  tangible,  substantial  warp  and  woof 
of  pleading  consists  in  the  essential  rules  of  common-law  plead- 
ing, and  in  most  instances  the  change  in  phraseology  and  in 
names  has  had  no  other  effect  than  to  introduce  into  the  fabric 
a  shoddy,  which  for  a  time  gave  an  apparent  gloss,  but  added 
no  strength  to  the  material.  Precisely  as  the  student  of  Ameri- 
can law  cannot  understand  the  system  of  procedure  in  vogue 

ild.,  pp.  65,  66,  67.  Stephen.  The  late  Judge  Cooley  says: 
2 Bliss,  Code  PL,  §  141.  Prof.  Bry-  "Let  the  common-law  rules  be  mas- 
ant  and  Judge  Phillips  introduce  tered  and  the  work  under  the  code 
their  treatises  with  a  short  review  of  will  prove  easy  and  simple."  Int.  to 
the  common-law  system,  the  for-  Cooley's  Blk.  (4th  ed.),  xxvii. 
mer  using  the  rules  formulated  by 


16  DEVELOPMENT   OF   SYSTEMS.  [§  12. 

in  any  of  the  states  without  some  understanding  of  the  system 
of  common-law  and  equity  procedure,  so  the  practical  pleader, 
wherever  the  distinction  between  legal  and  equitable  actions 
with  the  right  of  trial  by  jury  is  preserved,  must,  in  order  to  in- 
telligently practice  the  art  of  pleading,  understand  the  essential 
rules  and  principles  of  common-law  pleading.  This  knowledge 
is  not  merely  academical,  but  practical. 

"  The  science  of  special  pleading l  is  an  excellent  logic.  It 
is  admirably  calculated  for  the  purpose  of  analyzing  a  cause' 
to  extract,  like  the  roots  of  an  equation,  the  true  points  tin  dis- 
pute, and  leaving  them  with  all  imaginable  distinctness  to  the 
court  or  jury.  It  is  reducible  to  the  strictest  rules  of  pure  dia- 
lectics, and  tends  to  fix  the  attention,  give  a  habit  of  reasoning 
closely,  quicken  the  apprehension  and  invigorate  the  under- 
standing." 2 

§  12.  Reason  for  technicality. —  The  excessive  strictness 
which  once  deformed  it  was  not  a  natural  outgrowth  of  the 
system.  "We  are  told  by  Blackstone 3  that  in  an  early  day  cor- 
rupt judges  fell  into  an  evil  habit  of  making  false  entries  on 
the  roll  to  cover  their  own  misbehavior,  and  took  upon  them- 
selves, by  amendments  and  erasures,  to  falsify  their  own  rec- 
ord. The  king,  therefore,  declares  that,  "although  we  have 
granted  to  our  judges  to  make  record  of  pleas  pleaded  before 
them,  yet  we  will  not  that  their  own  record  shall  be  a  warranty 
for  their  own  wrong."  And  King  Edward  the  First,  after  his 
return  from  France,  instituted  vigorous  prosecutions  against 
his  judges  for  their  corruption  and  malpractices,  inflicting 
heavy  fines  and  severe  punishments.  The  severity  of  these 
proceedings  alarmed  the  succeeding  judges,  so  that,  through  a 
fear  of  being  said  to  do  wrong,  they  hesitated  to  do  what  was 
right,  and  they  supposed  it  so  hazardous  to  alter  a  record  that 
they  refused  to  correct  even  palpable  errors,  and  some  refused 
even  to  judicially  amend  and  make  their  errors  agreeable  to 
the  truth.  "  To  this  real  sullenness,"  says  Blackstone,  "  but 
affected  timidity  of  the  judges,  such  a  narrowness  of  thinking 

1  It  should  be  borne  in  mind  that  2  Speeches  of  Isoeus,  Warren's  La w 

the  effort  is  to  do  away  with  general  Studies,  208;  Robinson  v.  Ray  ley,  1 

pleading  which  does  not  inform,  and  Burr.   319:    McFaul   v.  Ramsey,  20 

introduce  special  pleading  which,  so  How.  523. 

far  as  possible,  sets  forth  the  actual  33  Black.  Com.  *408. 
operative  facts. 


§  13.]  DEVELOPMENT   OF   SYSTEMS.  17 

was  added  that  every  slip,  even  of  a  syllable  or  a  letter,  was 
now  held  to  be  fatal  to  the  pleader,  and  overturned  his  client's 
cause.  .  .  .  Yet  these  were  among  the  absurd  reasons  al- 
leged for  never  suffering  amendments  at  all.  These  precedents 
then  set  were  afterwards  most  religiously  followed,  to  the 
great  obstruction  of  justice  and  ruin  of  the  suitors,  who  have 
formerly  suffered  as  much  by  this  scrupulous  obstinacy  and 
literal  strictness  of  the  courts  as  they  could  have  done  even  by 
their  iniquity." 

These  matters  were,  in  a  measure,  corrected  and  obviated  by 
the  various  rules  and  statutes  allowing  amendments.1 

Such  was  the  technicality  of  the  common-law  procedure 
and  such  the  cause  thereof.  The  remedy  was  found  in  the 
various  enactments,  principally  the  statutes  of  amendments 
and  jeofails.2 

§  13.  The  rise  of  the  court  of  chancery. —  Let  us  obtain  a 
notion  of  the  equitable  system  and  the  origin  of  the  court  of 
chancery.3  The  invention  of  that  system  or  branch  of  the  law 
which  we  term.  "  equity "  cannot  be  ascribed  to  our  English 
ancestors.  Every  system  of  government  which  has  made  any 
pretensions  to  a  system,  or  which  can  be  called  in  any  measure 
civilized,  has  recognized  that  there  may  arise  a  state  of  facts 
between  parties  which,  if  decided  according  to  the  strict  letter 
of  general  enactments  and  positive  rules,  which  must  of  ne- 
cessity be  expressed  in  general  terms,  will,  on  account  of  the 
poverty  of  language,  not  embrace  and  provide  for  every  com- 
bination of  circumstances  in  such  a  way  as  to  afford  a  just 
and  proper  remedy  for  every  wrong,  and  that  the  ordinary 
courts  to  which  the  administration  of  the  law  is  delegated  will 
not  always  afford  adequate  relief. 

Equity. —  A  definition  of  equity  still  in  use  is  that  of  Aris- 
totle, at  whose  feet  Alexander  the  Great  received  instruction. 
He  says:  "Equity  is  the  correction  of  that  wherein  the  law, 
by  reason  of  its  generality,  is  deficient."  The  same  idea  is 
put  by  Grotius:  "The  correction  of  the  law  wherein  it  is  de- 
fective by  reason  of  its  universality."  4 

1  See  Appendix  for  the  statutes  of  4 1  Willard's  Equity,  *37;  1  Black. 
Amendments  and  Jeofails.  Com.  61.    See  Andrews'  Am.  Law, 

2  3  Black.  Com.  406.  §647. 

3  Andrews'  Am.  Law,  1043. 

2 


18  DEVELOPMENT   OF    SYSTEMS.  [§  13. 

In  a  monarchy,  where  the  sovereignty  was,  in  truth  and  in 
fact,  in  the  ruler,  the  rigidity  of  the  law  was  easily  corrected 
by  an  appeal  to  him  personally.  This  was  doubtless  the  reason 
for  teaching  the  king  and  the  king's  sons,  even  the  great  Alex- 
ander, the  principles  of  natural  equity,  or,  as  they  were  de- 
nominated in  those  times,  the  great  natural  laws,  in  order  that 
he  might  administer  these  principles  in  cases  of  hardship  ap- 
pealed to  him.  Even  the  higher  developed  law,  which,  it  is 
said,  is  indebted  for  many  of  its  best  principles  to  the  Greeks, 
left  it  within  the  power  of  the  chief  magistrate  to  do  equity  and 
justice,  it  being  a  maxim  that  "  whatsoever  pleases  the  prince 
has  the  force  of  law."  So  long  as  the  prince  or  ruler  is  recog- 
nized as  the  fountain  of  justice  and  honor,  so  long  the  principles 
of  equity  may  be  administered  without  fear  of  the  charge 
that,  in  applying  these  principles  of  natural  law,  he  is  dispens- 
ing with  the  law  of  the  land.  Thus,  Lord  Bacon  says  con- 
cerning the  office  and  prerogatives  of  the  crown:  "But  I  de- 
mand, do  these  offices  or  operations  of  law  obviate  or  frustrate 
the  original  submission  which  was  natural.  The  allegiance  of 
subjects  to  hereditary  monarchs  is  corroborated  and  confirmed 
by  law,  but  is  the  work  of  the  law  of  nature,  and  therefore  is 
the  observation  true  that  law-givers  were,  long  after  the  first 
kings  who  governed  for  a  time  by  natural  equity,  without 
law." l 

It  is  in  recognition  of  these  principles  that  the  equitable  doc- 
trines were  first  administered  in  England  by  the  king  in  per- 
son under  his  royal  prerogative,  as  the  source  and  fountain  of 
justice  and  honor,  and  the  granting  of  such  relief  in  cases  of 
hardship  as  commended  themselves  to  the  mind  of  the  prince 
offered  no  obstacles  until  limitations  were  placed  upon  the  pre- 
rogative of  the  crown,  either  by  statute  or  by  charters.  The 
unlimited  prerogative  of  the  crown  in  dispensing  with  law  for 
the  purpose  of  administering  justice  never  found  favor  in  the 
Saxon  community,  and  it  became  a  requirement  to  have  these 
appeals  either  to  the  king  in  council  or  to  parliament.2 

The  office  of  chancellor  in  the  king's  courts  is  not  to  be  con- 
fused with  the  court  of  chancery  as  we  now  understand  it. 
The  chancellor  was  an  officer  of  the  curia  regis  long  before 

1  Argument  in  Pest  Nati  Scotland,        2 1  Reeves'  Hist  Com.  Law,  283. 
2  Bacon's  Works,  169. 


§  13.]  DEVELOPMENT   OF   SYSTEMS.  19 

I 

the  existence  of  the  separate  court  of  chancery,1  and  it  was  his 
duty  to  frame  writs  in  new  cases,  as  they  arose,  for  the  com- 
mon-law courts,  under  what  was  termed  the  action  on  the  case.8 

The  limitations  upon  the  power  of  the  crown,  contained  in 
the  various  charters,  which  destroyed  his  power  to  dispense 
with  the  law,  is  the  main  cause  for  the  establishment  of  the 
equitable  jurisdiction  in  a  court  with  a  fixed  place  and  not  fol- 
lowing the  person  of  the  king,  and  this  seems  to  have  been 
•established  under  the  name  coram  legi  in  cancellaria? 

The  chancery  court  soon  became  an  important  factor,  exer- 
cising, as  it  did,  powers  of  the  highest  nature,  of  such  dignity 
that  had  heretofore  been  ascribable  only  to  the  prerogative  of 
sovereignty.4 

Separate  tribunals. —  It  seems  that  the  establishment  of  dif- 
ferent courts  for  the  administration  of  law  and  equity,  as  they 
arose  in  England,  was  not  known  to  any  other  country  prior 
to  this  time,  the  different  systems  being  administered  under  the 
Roman  law  by  the  same  tribunal,  the  jus  praetor iam,  or  discre- 
tion of  the  pr^tor,  which  stands  for  equity,  being  distinguished 
from  the  legis  or  ordinary  rules  of  law,  but  both  being  centered 
in  the  same  magistrate ;  and  in  England  the  aula  regia  admin- 
istered equal  justice  according  to  the  rules  of  both  or  either,  as 
the  case  might  require.  And  when  this  court  was  abandoned, 
the  idea  of  a  court  of  equity  as  distinguished  from,  a  court  of 
law  was  not  a  part  of  the  plan  of  partition.5 

In  later  times,  when  the  jurisdiction  of  the  court  of  chancery 
to  interfere  with  judgments  of  the  courts  of  law  was  questioned 
by  Sir  Edward  Coke,  the  king  referred  the  matter  to  men 
learned  in  the  law,  who  reported  in  favor  of  the  jurisdiction  of 
•equity  upon  established  principles  of  jurisprudence.  But  the 
king  himself  was  not  satisfied  to  rest  the  jurisdiction  merely 
upon  ordinary  legal  principles,  but  referred  the  matter  to  the 
plenitude  of  his  royal  prerogative.6 

For  a  long  time  it  was  considered  impossible  to  reduce  the 
practice  of  equity  to  stated  rules,7  although  Bacon  reduced  the 

1 1  Reeves'  Hist.  Com.  Law,  279,  280,        «  Andrews'  Am.  Law,  1043. 
notes;  Andrews'  Am.  Law,  1043.  »3  Black.  Com.  49;  Andrews'  Am. 

2  3  Black.  50.  Law,  1042. 

3 1  Spence,  Eq.  Jur.  344;  1  Reeves'       62  Black.  Com.  54 
Hist.  Com.  Law,  283.  7 1  Black.  Com.  92. 


20  DEVELOPMENT   OF   SYSTEMS.  [§  14. 

practice  to  a  more  regular  system;  but  at  the  time  of  the 
American  Eevolution,  the  principles  and  rules  of  the  court  of 
chancery  were  a  connected  system,  governed  by  established 
principles,  and  bound  by  precedents.1 

The  fact  that  the  court  of  chancery  was  established  as  a 
separate  tribunal  is  important  to  the  American  student,  in  view 
of  the  modern  tendency  to  invest  the  same  court  and  the  same 
judge  with  both  the  common-law  and  equitable  jurisdiction,  the 
separation  being  more  by  chance,  for  purposes  of  utility,  than 
upon  any  reason  or  inconsistency  of  the  same  tribunal  exercis- 
ing the  different  powers  and  affording  the  different  remedies. 

In  reference  to  equity  jurisprudence  we  may  adduce  the  fol- 
lowing principles :  1.  The  reason  and  necessity  for  equitable 
relief  was  the  inability  of  courts  applying  the  ordinary  posi- 
tive rules  of  law  to  grant,  in  all  cases,  complete  and  adequate 
relief.  2.  The  original  source  of  the  jurisdiction  rested  upon 
the  plenary  power,  which  was  admitted  to  exist  in  a  personal 
sovereign.  The  source  of  the  jurisdiction  in  a  tribunal  or 
court,  other  than  the  monarch,  rests  in  the  power  to  delegate 
such  authority  to  courts.  Thus,  in  England  the  courts  were 
the  kirg's  courts.  He  was  the  fountain  of  justice  and  honor, 
and  it  was  a  part  of  his  prerogative  to  administer  law  and 
justice.  The  reason  and  necessity  for  the  recognition  of  equi- 
table powers  in  the  courts  by  the  sovereign  body  in  England 
(Parliament)  arose  by  reason  of  limitations  upon  the  power  of 
the  personal  sovereign  to  dispense  with  the  strict  rules  of  the 
law.  The  grounds  for  the  jurisdiction  are  always  the  same; 
namely,  the  inability  to  provide  by  positive  law,  whether  evi- 
denced by  a  statute,  a  custom,  or  a  judicial  decision  which 
must  be  expressed  in  general  language,  rules  which  would  be- 
equitable  for  every  and  all  combinations  of  circumstances  which 
might  arise;  for,  as  there  be  those  "that  steal  the  livery  of 
heaven  to  serve  the  devil  in,"  so  the  craft  and  ingenuity  of  the 
human  mind,  in  seeking  to  injure  or  defraud,  is  often  careful 
to  assume  the  garb  and  form  of  law. 

§  14.  The  court  of  chancery  in  America. —  Such  is  a  brief 
and  incomplete  sketch  of  the  rise  of  equitable  jurisdiction  in  a 
separate  tribunal,  and  the  student  must  remember,  as  he  no- 
tices the  transition  from  English  jurisprudence  to  the  juris- 

1 3  Black.  Cora.  432;  Hood  v.  Inrnan,  4  Johns.  Ch.  437. 


•§  15.]  DEVELOPMENT   OF   SYSTEMS.  21 

prudence  of  America,  another  principle.1  The  king  in  England 
was  the  chief  executive  officer  and  the  judiciary  was  but  a 
branch  of  the  executive  and  largely  dependent  upon  him  until 
after  the  Revolution  in  America,  although  by  the  Revolution 
of  1688  in  England  the  king  was  practically  stripped  of  all  the 
ancient  attributes  of  sovereignty.  Parliament  was  the  sov- 
ereign body  and  was  the  ultimate  tribunal  for  all  the  courts, 
legal  as  well  as  equitable.  But  there  was  no  such  thing  known 
as  a  co-ordinate  power  or  jurisdiction  under  the  name  of  judi- 
cial power  which  was  equal  in  importance  with  the  legislative 
and  the  executive,  such  as  exists  in  the  United  States.  "When 
the  instruments  of  government  were  created  by  the  people  of 
the  United  States  in  whose  hands  the  sovereignty  devolved 
upon  obtaining  their  independence  and  establishing  the  con- 
stitution which  created  this  union  of  States  a  Nation,  the  prin- 
ciple that  power  is  never  to  be  exercised  as  a  personal  right 
rendered  it  unnatural  that  any  department  of  government 
should  be  dependent  upon  or  subordinate  to  another,  and  ren- 
dered it  natural  that  the  judicial  power  should  be  delegated  to 
such  hands  as  the  people  might,  in  the  plenitude  of  their 
power,  select.  Following  the  example  of  their  English  ances- 
tors, although  not  based  upon  any  necessity  or  reason,  they 
established  different  tribunals  for  the  administration  of  law 
and  equity  under  the  denomination  of  the  judicial  department. 
The  development  of  the  science  of  law  and  experience  have 
shown  that  there  is  no  necessary  conflict  between  the  two  sys- 
tems, and  that  they  may  be  administered  in  the  same  tribunal, 
until  now  the  almost  universal  practice  is  to  have  courts  insti- 
tuted with  both  equitable  and  legal  jurisdiction. 

§15.  New  York  and  Pennsylvania  procedure,— A  system 
of  procedure  which  combined  the  administration  of  equity  and 
law  in  a  single  form  had  existed  in  Pennsylvania  long  before 
there  was  any  thought  of  a  code  of  civil  procedure. 

Before  leaving  England  to  plant  a  colony  in  America,  Penn 
and  his  associates  agreed  in  what  may  be  called  their  constitu- 
tion, "  that  in  all  courts  all  persons  of  all  persuasions  may  freely 
appear  in  their  own  way,  and  according  to  their  own  manner, 
and  there  personally  plead  their  own  cases  themselves,  or,  if 
unable,  by  their  friends.  .  .  .  That  all  pleadings,  processes 

1  See  Andrews'  Am.  Law,  p.  1051. 


22  DEVELOPMENT   OF   SYSTEMS.  [§  Ifr, 

and  records  in  court  shall  be  short  and  in  English,  and  in  an 
ordinary  and  plain  character,  that  they  may  be  understood  and 
justice  speedily  administered." : 

The  difference  between  the  theory  of  the  ancient  Pennsyl- 
vania procedure  and  the  theory  of  the  advocates  of  the  New 
York  code  before  its  enactment  was  that  in  the  former  there 
was  an  attempt  to  blend  legal  and  equitable  remedies  under 
common-law  forms,  whereas  the  latter  proceeded  upon  the  idea 
of  abolishing  all  forms  of  procedure,  with  a  leaning  toward  the 
idea  of  adopting  a  formal  mode  of  procedure  resembling  the 
old  equity  practice ;  but  in  neither  case  did  much  success  or 
satisfaction  attend  these  attempts. 

It  is  interesting  to  notice  that  the  origin  of  our  judicial  sys- 
tem may  be  clearly  traced  back  of  what  we  term  the  "mother 
country,"  and  that  in  its  source  and  pristine  vigor  as  adminis- 
tered under  the  Koman  tribunals,  the  jurisdiction  of  equitable 
and  legal  powers  rested  in  the  same  magistrate,'2  and  that,  for 
reasons  accidental  or  arbitrary  in  the  English  law,  they  were 
delegated  to  separate  tribunals. 

§  16.  Distinctive  features  of  code  reforms. — The  theoretical 
abolition  of  all  forms  of  action,  the  theoretical  abolition  of  the 
distinction  between  actions  at  law  and  suits  in  equity,  which 
theoretically  results  in  the  introduction  of  one  simple  mode  of 
procedure  for  all  the  various  classes  and  kinds  of  actions,  the 
proposed  abolition  of  fictions  and  technical  language,  and  several 
new  rules  as  to  joinder  of  parties,  are  claimed  to  be  the  crown- 
ing achievements  of  codification.  The  allowance  of  amend  raents. 
incidentally  completes  the  reform.  Taking  these  in  their  order, 
let  us  see  how  far  they  have  been  accomplished.  The  subject 
of  joinder  receives  special  treatment  in  the  text  and  need  not 
be  mentioned  here.3 

First,  what  has  been  the  result  of  the  attempt  to  abolish  all 
distinction  as  to  the  forms  of  actions  ?  There  seems  to  be  a, 
misconception  in  respect  to  this  object  of  the  code.  It  is  some- 
times supposed  that  the  intention  and  object  of  the  code  was  to 
affect  in  some  manner  the  elements  which  constituted  a  cause 

!See  Lyle  v.  Richards,  9  S.  &  R.  23  Black.  Com.  49;  McConihay  v. 

340,  opinion  of  Duncan,  J.,  p.  355;  Pa,  Wright,  121  U.  S.  206. 

Bar  Ass'n  Rep.,  vol.  I,  p.  5;  Andrews'  *Post,  tit.  Joinder  of  Parties. 
Am.  Law,  p.  1032. 


§  16.]  DEVELOPMENT   OF   SYSTEMS.  23 

of  action  at  common  law.  But  the  code  of  procedure  makes 
no  attempt  to  introduce  any  new  causes  of  action  or  to  dispense 
with  any  of  the  facts  necessary  to  constitute  what  has  hereto- 
fore been  recognized  as  a  cause  of  action.  The  change  intended 
is  merely  in  the  form  of  procedure  by  which  the  remedy  for  a 
right  is  judicially  administered.1  Thus  in  Illinois  (a  common- 
law  state)  the  legislature  abolished  the  distinction  between  the 
action  of  trespass  and  case,  but  the  court  held  that,  while  the 
technical  distinction  between  the  forms  of  action  was  abolished, 
the  rights  and  liabilities  were  not  affected,2  and  a  count  in  tres- 
pass or  case  must  have  the  same  facts  as  formerly.  A  count 
in  either  would  not  be  proved  by  evidence  of  the  other.8 

It  is  quite  plain  that  the  facts  which  constitute  the  cause  of 
action  have  not  been  affected  by  the  code,4  and  it  would  seem 
to  follow  that  no  change  had  been  made  in  the  nature  of  rights 
and  the  character  of  injuries  to  them  which  would  constitute 
a  cause  of  action.  A  code  might  provide  that  a  distinction  be-  ^ 
tween  forms  of  action  should  not  be  recognized,  but  there  must 
remain  a  substantial  difference  in  the  formal  statement  of  dif- 
ferent cases.5 

The  codes  of  all  the  states  require  that  the  complaint  or 
petition,  which  stands  in  place  of  the  narration,  or  count,  or 
bill,  shall  contain  a  brief  and  clear  statement  of  all  the  facts 
constituting  the  cause  of  action  in  ordinary  language.  It  is 
quite  apparent  that  in  a  code  state,  as  well  as  in  a  common- 
law  state,  the  form  of  complaint  upon  a  promissory  note  will 
not  be  the  same  as  the  form,  of  complaint  in  a  case  of  assault 

lCo\e  v.   Reynolds,  18  N.  Y.  74;  only  that  has  been  abolished.    How, 

Peck  v.  Newton,  46  Barb.  173;  Lattiu  then,  is  the  court  to  determine  when 

v.  McCarty,  41  N.  Y.  107;  Meyers  v.  an  action  is  one  at  law  or  one  in 

Field,  37  Mo.  434  equity?    Clearly  by  the  facts  stated 

2  Blalock  v.  Randall,  76  111.  224  in  the  complaint  and  the  subject- 

8  Gay  v.  De  Werff,  17  111.  App.  417.  matter  of  the  action.    Judged  by  this 

*  Frost  v.  Duncan,   19  Barb.  560;  test,  is  not  this  action  one  to  enforce 

Cropsey  v.  Sweeney,  7  Abb.  Pr.  179,  an  equitable  right?    Does  it  not  state 

27  Barb.  310;  Hill  v.  Barrett,  14  B.  substantially  all  the    facts  that  it 

Mon.  67-69.  would  have  been  necessary  to  state 

s  "The  distinction,  therefore,  in  the  in  a  bill  in  equity  under  the  old  sys- 

forms  of  action  is  swept  away  by  tern  ?    "What  additional  facts  would 

this  section.      Law  and  equity,  as  the  pleader  have  stated  in  a  similar 

two  distinct  systems,  still  remain.    It  action  under  the  equity  system  of 

is  the  distinction  between  the  forms  pleading?"  Sykes  v.  First  Nat.  Bank, 

of  action  at  law  and  suits  in  equity  2  S.  Dak.  244 


24:  DEVELOPMENT   OF   SYSTEMS.  [§  16. 

and  battery,  and  that  the  claim  for  assault  and  battery  will 
not  support  a  judgment  upon  evidence  showing  a  good  cause 
of  action  for  the  negligent  injury  without  force,  etc. ;  that  is, 
under  the  code  you  are  obliged  to  have  a  narration  (declara- 
tion) different  in  its  substantial  part  for  every  cause  of  action, 
alleging  the  identical  facts  that  were  necessary  to  constitute  a 
cause  of  action  at  common  law.1  It  is  true  that  the  declara- 
tion or  petition  or  complaint  does  not  have  to  conform  to  the 
Avrit ;  i.  e.,  it  does  not  have  to  state  that  the  defendant  is  sum- 
moned in  a  plea  of  trespass  on  the  case,  or  trover,  etc.,  but  the 
body  of  the  count  must  conform  to  a  distinct  theory. 

An  examination  of  the  different  works  on  code  procedure 
will  show  that  the  forms  of  petition  under  the  code  are  as  nu- 
merous and  various  as  can  be  found  in  any  work  on  common- 
law  pleading.  In  Maxwell  on  Code  Pleading  there  are  four 
hundred  and  sixty-six  (466)  forms  of  petitions,  and  one  hundred 
and  twenty-six  (126)  forms  of  answers.  Boone  gives  six  hun- 
dred and  four  (604)  different  forms. 

It  cannot  be  pretended  that  these  different  forms  are  the 
same  in  substance. 

There  is  much  truth  in  the  remark  made  by  Chief  Justice 
Grier:  "The  attempt  to  abolish  a  species  and  to  establish  a 
single  genus  is  beyond  the  power  of  legislative  omnipotence." 
There  is  no  such  mysterious  magic  in  the  word  "code."  You 
cannot  compel  lawyers  not  to  distinguish  between  things  that 
differ.  So  long  as  the  causes  of  action  differ  from  each  other, 
so  long  must  the  forms  of  statement  thereof  used  by  the  pleader 
differ  in  substance,  and  the  form  must  follow  the  substance 
under  either  system. 

The  next  improvement  claimed  for  code  procedure  is  that  of 
abolishing  the  distinction  between  proceedings  in  actions  at 
law  and  proceedings  in  suits  in  equity ;  but  this  claim  is  not 
sustained  by  the  facts.  It  is  not  true  that  in  actual  practice  in 
the  code  states  the  procedure  is  the  same  in  a  case  which  was 
originally  a  common-law  action  as  the  procedure  in  another 

1 "  This  rule  is  substantially  as  it  ex-  action  substantially  in  the  same  man- 

isted  prior  to  its  enactment  in  actions  ner  as  they  were  stated  in  the  old 

at  law.    I  have  supposed  it  safe,  and  system  in  a  special  count."    People 

a  compliance  with  the  code,  to  state  ex  rel.  Crane  v.  Ryder,  12  N.  Y.  437. 
the  facts  constituting  the  cause  of 


§  16.]  DEVELOPMENT   OF    SYSTEMS.  25 

case  which,  before  the  adoption  of  the  code,  would  have  been 
called  an  equitable  action.1 

It  is  not  pretended  by  those  best  acquainted  with  the  code 
procedure  that  the  distinction  between  law  and  equity  is  actu- 
ally abolished.  Thus,  Professor  Pomeroy  says:  "The  distinc- 
tion between  law  and  equity  is  not  abolished.  These  t\vo 
departments  of  the  municipal  law,  comprising  their  distinctive 
and  peculiar  primary  rights  and  duties  and  furnishing  their 
special  remedies,  are  left  untouched  by  legislation,  and  it  is 
plain  that  they  cannot  be  consolidated  into  one  as  long  as  the 
jury  trial  is  preserved  by  the  constitutional  enactments  in  the 
various  states.  The  change  does  not  extend  to  the  rights  and 
duties  themselves,  which  are  collectively  called  law  and  equity, 
nor  to  the  remedies  which  have  been  used  in  maintaining  these 
rights,  but  is  entirely  confined  to  the  judicial  instrument  used 
to  afford  the  remedies." 2 

Again  he  says:  "The  abolition  is  not  of  the  distinction  be- 
tween law  and  equity,  or  legal  and  equitable  rights  and  reme- 
dies, but  between  the  forms  of  action  or  proceedings  It/  the 
abolition  of  common-law  pleading." 3 

There  is  an  inherent  essential  difference  between  law  and 

!Peck  v.  Newton,  46  Barb.  173;  the  authors  of  our  judicature  acts  in 
Sykes  v.  First  Nat.  Bank,  2  S.  Dak.  England,  men  of  the  highest  emi- 
244;  Peters  v.  Delaplaine,  49  N.  Y.  nence,  but  trained  exclusively  in  the 
362;  Andrews'  Am.  Law,  p.  1058.  chancery  system,  went  about  to  en- 
Mr.  William  H.  Hornblower,  of  the  graft  considerable  parts  of  that  sys- 
New  York  bar,  said  in  a  recent  speech  tern  on  the  practice  of  the  courts  of 
at  a  dinner  of  the  Hudson  County  the  common  law.  IVJiat  came  of 
(N.  Y.)  Bar  Association:  "I  believe  their  good  intent  ions?  Instead  of  the 
our  practice  to-day  is  infinitely  more  simplicity  and  substantial  equity 
technical  than  that  in  New  Jersey,  which  they  looked  for,  the  new  birth 
Even  the  attempt  to  abolish  forms  of  of  justice  was  found  to  be  perplexed 
action,  and  especially  the  attempt  to  practice,,  uncertainty,  vexatious  in- 
abolish  the  distinction  between  law  terlocutory  proceedings,  and  multi- 
and  equity  practice,  have  been  dis-  plication  of  appeals  (delay)  and  costs 
mal  failures.  .  .  .  The  effect  has  (expense),  so  that  for  several  years 
been  to  rigidify  and  harden  the  prac-  the  latter  state  of  the  suitor  was 
tice  in  equity,  to  assimilate  it  more  worse  than  the  former."  Andrews' 
and  more  to  the  common-law  prac-  Am.  Law,  1055  et  seq. 
tice,  to  make  the  judges  more  and  2  Pomeroy's  Code  Rem.  36.  See 
more  disposed  to  follow  precedents,  Peck  v.  Newton,  46  Barb.  173. 
and  less  disposed  to  strike  out  upon  3  Pomeroy's  Code  Rein.  39,  40,  78, 79. 
original  lines  of  equitable  jurispru-  Much  to  the  same  effect  will  be  found 
dence."  ...  Sir  Frederick  Pol-  in  Maxwell's  Code  PL  72,  73. 
lock  said  in  1893:  "Twenty  years  ago 


26  DEVELOPMENT   OF   SYSTEMS.  [§  16, 

equity,  and  the  courts  uniformly  recognize  a  distinction  re- 
quiring essentially  different  procedure  in  the  different  kinds  of 
actions  in  the  code  states.1 

Here  is  an  express  admission  that  there  is  an  essential  differ- 
ence between  law  and  equity,  and  that  this  difference  must  be 
recognized  in  practice ;  and  it  so  happens  that  this  difference 
extends  to  the  modes  of  administering  relief  in  the  courts^ 
which  is  essentially  a  difference  in  procedure.  Now  the  basis 
of  the  jurisdiction  of  courts  of  equity  was  to  enforce  equitable 
rights  and  to  directly  proceed  against  the  man  himself;  hence 
the  maxim  that  courts  of  equity  act  in  personam2  and  can- 
not directly  affect  property,3  while  courts  of  law  primarily 
award  damages,  and  the  remedy  afforded  at  common  law  gen- 
erally exhausts  itself  when  the  property  of  the  man  is  ex- 
hausted. There  is  an  essential  difference  between  the  proced- 
ure at  common  law  and  in  chancery.  The  prime  object  of 
common-law  pleading  is  not  only  to  apprise  the  opposite  party 
of  the  cause  of  action,  but  to  arrive  at  one  or  more  integral 
issues  between  two  sets  of  opposing  parties;  while  the  allega- 
tions in  chancery  may  set  forth  specific  facts  concerning  several 
transactions  between  any  number  of  different  parties,  or  sets 
of  parties,  and  limited  only  by  the  multitudinous  circumstances 
by  which  many  persons  may  obtain  different  interests  in  one 
subject-matter,  or  how  various  subjects  may  be  mingled  to- 
wards accomplishing  a  common  object.  There  can  be  but  two- 
sets  of  parties  at  law,  and  all  upon  one  side  must  be  interested 
in  the  same  way  and  be  entitled  to  the  same  thing;  but  in 
equity  there  may  be  many  different  classes  of  litigants  whose 
interests  are  different.  In  one  case  the  parties  oppose  each 
other  in  one  or  several  integral  issues;  in  the  other  they  radi- 
ate around  a  common  subject  of  litigation.  At  law  the  right 
can  be  upon  but  one  side,  while  in  equity  all  may  have  a  just 
and  valid  interest  in  the  subject-matter,  either  of  the  same  kind 
and  degree  or  differing  in  kind,  quality  or  degree.4 

1  Basey  v.  Gallagher,  20  Wall.  670;    584,  44  Am.  Dec.  412;  Baker  T.  Rock- 
McConihay  v.  Wright,  121  U.  S.  201;    abrand,  118  III  365;  Hart  v.  Sansom, 
Story's  Eq.  PI.,  sec.  26,  note.  110  U.  S.  151. 

2  Gardner  v.  Ogden,  22  N.  Y.  327,  '     4See  Willard's  Eq.  Jur.  (Potter's 
78  Am.  Dec.  192.  ed.)  43;  LangdelPs  Sum.  Eq.  PL,  §  41; 

3  Bracken  v.  Preston,  1  Pinn.  (Wis.)    Andrews'  Am.  Law,  1058. 


§  17.]  DEVELOPMENT   OF   SYSTEMS.  27 

The  mode  of  trying  questions  joined  at  law  and  in  chancery 
has  been,  and  in  many  code  as  well  as  common-law  states  must 
still  continue  to  be,  different  until  changed  by  constitutional 
enactments.  "  It  cannot  be  doubted,"  says  Willard,  "  that  the 
blending  of  all  actions  into  one  single  form  may  in  some  cir- 
cumstances cast  a  doubt  over  the  rights  they  are  designed  to 
protect." l 

In  1884,  Judge  Pitt  Taylor,  author  of  a  work  on  Evidence, 
in  his  preface  to  the  eighth  edition  remarks  in  regard  to  the 
English  Judicature  Acts  of  1873  and  1875:  "  The  fusion  of  law 
and  equity,  which  was  to  overthrow  such  a  phalanx  of  abuses, 
and  to  frustrate  so  many  knavish  tricks,  has  resulted  not  only 
in  confusion,  but,  to  use  the  vigorous  language  of  our  blind 
bard,  in  '  confusion  worse  confounded.'  It  is  a  humiliating  con- 
fession, but  it  is  unquestionably  true." 2 

The  third  point  claimed  is  that  greater  simplicity,  expedition 
and  ease  of  administration  is  obtained  under  the  code  than  in 
the  common-law  system.  But  this  cannot  be  demonstrated  with 
any  degree  of  certainty,  and  we  need  but  refer  to  the  numer- 
ous volumes  of  reports  in  code  states  of  decisions  upon  points 
in  practice  to  satisfy  ourselves  that  no  code  which  has  yet  been 
developed  has  rendered  free  from  all  necessity  for  skill,  discrim- 
ination and  subtlety,  the  application  of  the  principles  of  the 
law  and  evidence  to  disputed  facts  in  the  adjudication  before 
a  judicial  tribunal. 

§17.  The  systems  contrasted. —  There 'is  not  such  great 
difference  in  principle  between  the  reform  procedure  in  the 
code  states  and  the  reform  procedure  in  the  so-called  common- 
law  states.  For  instance,  in  Illinois,  which  is  still  called  a  com- 
mon-law state,  the  ancient  fictions  are  no  longer  in  use,  and 
there  is  a  liberality  and  simplicity  in  allegations  equal  to  that 
in  use  anywhere.  There  is  great  liberality  of  amendment  and 
an  entire  obliteration  of  the  ancient  useless  technicalities  and 
fictions.  This  is  accomplished  by  the  provisions  of  the  Prac- 
tice Act,  which,  to  all  intents  and  purposes,  may  be  termed  a 
code  of  procedure  in  civil  cases. 

The  code  procedure  is  claimed  by  some  to  differ  from  the 
common-law  system  of  pleading  in  that  it  may  be  designated 

l  Willard's  Eq.  Jur.  (Potter's  ed.)  43.        2  Taylor  on  Evidence  (8th  ed.),  1884, 

Preface. 


28  .  DEVELOPMENT    OF   SYSTEMS.  [§  17. 

as  the  "  fact  system."  Those  who  attempt  to  make  this  dis- 
tinction allege  the  vice  of  the  old  system  to  be  its  general 
averment  (common  counts),  prolixities  and  general  issues,  and 
the  delay  and  expense  inseparable  from  this.1 

The  code  of  every  state  provides  that  the  substantial  facts 
constituting  the  cause  of  action  shall  be  set  forth  with  reason- 
able certainty,  conciseness  and  succinctness.  That  is  all  that 
is  required  in  the  common-law  states.2 

Chitty,  in  his  work  on  Pleadings,  states  that  the  declaration 
must  allege  all  the  circumstances  necessary  for  the  support  of 
the  action,  and  generally  a  full,  regular  and  methodical  state- 
ment of  the  injury  which  the  plaintiff  has  sustained.3 

"  The  province  of  the  declaration,"  says  the  supreme  court 
of  Illinois,  "  is  to  exhibit  upon  the  record  the  grounds  of  the 
plaintiff's  cause  of  action,  as  well  for  the  purpose  of  notifying 
the  defendant  of  the  precise  character  of  those  grounds  as  of 
regulating  his  own  proofs.  "When  it  performs  such  office,  in 
such  manner  as  to  leave  no  doubt  on  the  mind  of  the  defend- 
ant either  as  to  the  nature  or  origin  of  the  plaintiff's  claim, 
it  ought  not,  on  principle,  to  be  adjudged  bad."4 

]STow  this  is  all  that  is  required  at  common  law.  "Will  any- 
thing less  do  in  a  code  state  ?  Only  in  actions  upon  contracts 
is  anything  less  allowed  at  common  law,  namely,  in  assumpsit, 
where  the  common  counts  are  used.  The  reason  given  in 
Chitty  for  the  use  of  common  counts  was  to  save  the  verdict 
where  the  evidence  varied  from  the  special  count.  Certainly 
no  code  pleader  would  complain  of  such  a  reform  as  that  insti- 
tuted for  that  reason.  There  are  only  four  forms  of  common 
counts,  namely,  indebitatus  assurnpsit,  quantum  meruit,  quan- 
tum valefiant,  and  account  stated. 

Afterwards,  by  a  statute  passed  in  a  spirit  of  reform  proced- 
ure, a  common  count  was  allowed  in  cases  for  use  and  occupa- 
tion.5 The  only  defect  of  allowing  common  counts  was,  and  is, 
that  the  common  counts  do  not  inform  the  defendant  of  the 
special  facts  constituting  his  action;  but  as  the  action  is  always 
confined  to  contracts,  a  motion  for  a  bill  of  particulars  fur- 
nishes a  complete  remedy  for  this  defect,  and  the  practice  is 

1  Maxwell,  Code  PL  105.  *  Cook  v.  Scott,  1  Gilm.  333. 

2  Solomon  v.  Vinson,  31  Minn.  205.        6 1  Chitty 's  PL  354 
3 1  Chitty's  PL  255. 


§  18.]  DEVELOPMENT   OF   SYSTEMS.  29 

almost  uniform  to  file  special  counts  upon  everything.  "No 
judgment  by  default  can  be  taken  unless  a  copy  of  the  instru- 
ment or  account  sued  on  is  filed  and  sworn  to,  and  a  bill  of 
particulars  may  be  required  of  a  defendant  using  a  general 
issue.  The  common  counts  and  general  issues  are  doubtless 
open  to  the  objection  of  generality,  but  they  have  the  other 
merit  of  simplicity;  but  in  this  respect  the  codes  do  not  change 
the  common  law.  Common  counts  are  permitted  by  the  codes.1 
And  since  the  reason  for  the  common  count  has  by  reason  of 
the  liberal  allowance  of  amendments  ceased  to  exist,  there  is 
no  longer  the  same  necessity  for  the  common  counts.  But  these 
counts  will  everywhere  be  of  utility  so  long  as  the  fiction  of 
waiving  the  tort  and  suing  as  on  an  implied  contract  is  allowed, 
and  this  is  universally  practiced.  The  general  issue,  being  a 
simple  denial,  should  be  preserved ;  but  with  the  disuse  of  the 
common  count  it  would  naturally  not  admit  evidence  of  pay- 
ment, etc. ;  a  special  plea  would  and  should  be  required.2 

§  18.  The  path  of  future  reform.— It  is  no  longer  pre- 
tended that  the  knowledge  of  common-law  pleading  is  ren- 
dered useless  by  the  code,  but  that  the  same  fundamental 
principles  underlie  both  systems.  "  It  is  assumed,"  says  one, 
"  that  the  student  of  the  code  is  familiar  with  the  common-law 
and  equity  systems  of  pleadings.  If  not,  he  is  groping  in  the 
dark,  and  much  that  is  offered  will  escape  his  apprehension. 
This  knowledge  is  deemed  essential,  not  only  because  well- 
educated  lawyers  must  know  the  history  of  our  jurisprudence  — 
must  live  through,  as  it  were,  and  measure  every  step  of  its 
marvelous  progress, —  but  because  the  foundation  idea  of  plead- 
ings is  not  changed." 3 

This  sounds  very  much  like  saying  that  the  substantial  ideas 
of  code  pleading  are  derived  from  the  common-law  system, 
and  the  common-law  system  you  must  know.  This  is  essential, 
but  you  must  call  it  code  pleading.  The  student  is  promised 
something  new,  clear,  simple  and  easy,  but  useless  without  the 
other,  which  is  called  intricate,  technical,  complex,  but  which 
must  be  understood.  The  common-law  pleader  requires  no  as- 
sistance from  the  code  in  order  to  plead  his  cause.  The  most 
subtle  things  in  the  world  are  simple  and  easy  to  one  who  un- 

i  Allen  v.  Patterson,  7  N.  Y.  476,  57        2  McKyring  v.  Bull,  16  N.  Y.  297. 
Am.  Dec.  543,  and  note.  *  Bliss,  Code  PL  (3d  ed.),  sec.  141. 


30  DEVELOPMENT   OF    SYSTEMS.  [§  18. 

derstands  them.  Many  simple  things  confound  those  who  will 
not  take  time  to  learn. 

The  common-law  system  of  procedure,  as  now  administered 
in  the  states  adhering  to  it,  is  not  open  to  the  charge  of  being 
either  uncertain  or  verbose,  complex  or  highly  technical,  and 
it  cannot  be  demonstrated  that  its  forms  are  more  cumbersome, 
or  its  practice  more  tedious,  than  in  the  same  actions  in  a  code 
state.  The  most  that  can  be  said  is  that  it  is  not  perfect.  This 
can  be  said  of  the  practice  in  any  state.  The  great  desidera- 
tum to  an  approximately  perfect  system  of  procedure  in  the 
United  States  is  a  uniform  and  simple  system,  practically  the 
same  in  all  of  the  states.  This  is  apparent  on  account  of  the  fact 
of  the  immense  extent  of  our  interstate  commerce,  and  the  con- 
stant necessity  of  lawyers  from  one  state  practicing  in  another. 
There  is  no  reason  why  the  principal  elements  of  merit  in  the  re- 
formed system  of  procedure  cannot  be  combined  with  the  neces- 
sary and  logical  rules  of  the  common-law  system,  and  the  two 
amalgamated  into  one  harmonious  and  uniform  system,  which 
may  be  followed  throughout  the  various  states  of  the  Union. 

The  chief  obstacle  in  the  way  of  this  reform  lies  in  the  want 
of  a  full  understanding  of  merit  and  demerit  of  the  different 
systems,  and  the  prejudice  and  reluctance  on  the  part  of  law- 
yers to  exchange  anything  with  which  they  have  become 
familiar  for  something  that  is  new;  but  there  is  no  occasion  to 
construct  this  system  out  of  anything  really  new.  There  is 
enough  already  in  existence  out  of  which  to  frame  a  more 
excellent  system  of  procedure  than  has  yet  been  seen. 

The  chief  merit  of  the  code  system  consisted  in  breaking  down 
and  obliterating  the  veneration  for  obsolete  forms,  useless  fic- 
tions, and  technicality,  which  incumbered  and  marred  the  com- 
mon-law system.  But  the  code  idea  was  carried  to  the  excess 
of  attempting  to  abolish  natural  distinctions,  necessary  fictions 
and  useful  forms. 

Mr.  Justice  Simon  ton,  in  a  recent  case,  speaking  of  the  neces- 
sity for  some  established  forms,  very  aptly  quoted  Mr.  Justice 
Story  as  follows:  "  The  want  of  due  form  constitutes  a  just  ob- 
jection to  the  proceedings  in  every  court  of  justice,  for  to  re- 
ject all  form  would  be  destructive  of  the  law  as  a  science,  and 
would  introduce  great  uncertainty  and  perplexity  in  the  admin- 
istration of  justice.  Every  irregularity  of  this  sort  is  fraught 
with  inconvenience,  and  generally  tends  to  delays  and  doubts. 


§  18.]  DEVELOPMENT   OF   SYSTEMS.  31 

And  it  has  been  well  remarked  that  infinite  mischief  has  been 
produced  by  the  facility  of  courts  of  justice  in  overlooking 
errors  of  form.  It  encourages  carelessness  and  places  ignorance 
too  much  on  a  footing  with  knowledge  amongst  those  who  prac- 
tice the  drawing  of  pleadings."1 

There  is  such  a  clear  distinction  between  actions  upon  con- 
tracts and  actions  for  torts,  and  between  the  principles  of  law 
and  equity,  that  there  is  no  reason  why  these  genera  and  species 
should  not  be  observed;  and  the  courts  are  gradually  establish- 
ing the  lines  which  the  legislatures  endeavored  to  obliterate. 
But  any  discussion  of  these  questions  further  than  to  bring  in 
contrast,  as  nearly  as  possible,  the  points  of  difference  between 
the  two  systems,  would  be  foreign  to  this  discussion ;  the  object 
of  this  edition  of  Stephen's  Pleading  being  to  place  in  the 
hands  of  American  students  and  lawyers  those  fundamental 
rules  of  pleading  in  legal  actions  which  are  admitted  to  be  es- 
sential to  the  exercise  of  the  art  of  pleading  under  any  system 
of  law  as  practiced  in  the  United  States.2 

These,  it  is  believed,  will  be  found  to  be  eminently  useful, 
first,  in  the  actual  conduct  of  lawsuits,  and  second,  in  a  better 
comprehension  of  the  underlying  principles  of  all  systems. 

The  object  is  not  to  inculcate  a  veneration  for  one  system 
or  dislike  for  the  other,  but  to  make  clear  the  essential  points 
of  resemblance  and  difference  between  the  systems  and  the 
workings  of  each.  This  will  account  for  the  remark  frequently 
found  that  "  before  the  code,"  or  "  at  common  law  as  well  as 
under  the  code,"  etc.,  such  and  such  was  the  rule.  The  stu- 
dent must  bear  in  mind  that  the  commissioners  who  compiled 
the  first  code  of  New  York  did  not  invent  new  rules,  but  com- 
piled them  from  the  old  and  then  abolished  the  distinction  in 
forms  of  action  only.  As  we  shall  see,  there  is  every  reason 
to  believe  that  they  overlooked  several  common-law  rules  hav- 
ing a  great  bearing  upon  the  joinder  of  parties  to  actions. 

1  Strang  v.  Richmond,  etc.  R.  Co.,  feels  at  the  decadence  of  the  science 
101  Fed.  R.  514.  of  pleading  under  the  modern  Eng- 

2  •'  Code  pleading  seems  not  to  have  lish  practice.    He  says:   '  By  the  pre- 
the  unqualified  indorsement  of  the  cision  of  Scotch  pleading,  there  is 
English  courts.  In  the  case  of  Clydes-  still  a  necessity  to  set  out  the  real 
dale    Bank    v.    Paton,    [1896]    App.  cause   of  action   which  is  capable 
Cas.  381,  an  abstract  of  which  ap-  of   definite  and   precise  statement, 
pears  in  the  Canada  Law  Journal  for  which  I  regret  to  say  is  no  longer  the 
January,  1897,  Lord  Chancellor  Hals-  case  in  English  pleadings.' " 

bury  expresses  the  regret  which  he    Law  R.  768. 


CHAPTER  II. 

PARTIES  TO  ACTIONS.* 

§  19.  Outline  of  subject. —  A  complete  treatment  of  the 
subject  of  parties  to  actions  involves  a  discussion  of  — 

Who  is  considered  in  law  to  be  legally  interested  in  the  sub- 
ject and  cause  of  action;  i.  e.,  in  whom  is  the  right  of  action. 

Where  the  question  involves  the  decision  of  which  of  sev- 
eral persons  should  sue,  whether  the  action  belongs  to  one  or 
several,  it  involves  the  inquiries  — 

1.  Who  is  legally  interested;  i.  e.,  who  in  law  is  deemed  the 
person  injured? 

2.  When  the  contract  or  act  which  gives  rise  to  the  cause  of 
action  is  made  or  performed  by  an  agent  or  representative, 
who  may  sue  and  be  sued;  when  may  all  join  or  be  sued;  and 
in  what  cases  is  there  an  election  allowed  or  required  ? 

3.  When  may  all  of  several  who  are  legally  connected  with 
a  transaction  join  as  plaintiffs  or  be  joined  as  defendants? 

4.  Has  there  been  a  change  of  parties  by  reason  of  assign- 
ment of  the  right,  death  of  a  party,  or  marriage  of  a  female 
party  ? 

When  the  contract  upon  which  suit  is  brought  was  made 
by  or  with  several,  or  the  property  involved  was  owned  by 
several,  or  the  tort,  if  the  action  is  for  a  tort,  was  committed  by 
or  against  several  persons,  the  question  of  joinder  of  parties 
arises;  also  the  following  questions  in  addition  to  those  above 
named,  viz.: 

1.  Whether  the  right  is  held  jointly,  jointly  and  severally, 
severally,  or  in  common. 

2.  Whether  there  has  been  a  change  or  transfer  — 

By  reason  of  the  assignment  of  the  rights  of  any  one. 
By  reason  of  the  death  of  any  proper  party. 
By  reason  of  the  marriage  of  a  female. 

!"Sandes  v.  Wildsmith,  1  Q.  B.  771  old  rules  of  pleading,  though  tech- 
[1893],  is  a  useful  reminder  of  the  nical  and  rigid,  did  nevertheless  rest 
constantly  forgotten  fact  that  the  on  sound  principles.  The  limits,  for 


§  20.]  PARTIES   TO   ACTIONS.  33 

3.  Whether  one  who  should  or  might  join  refuses  to  join  in 
the  suit. 

But  inasmuch  as  it  is  our  purpose  only  to  treat  of  the  prin- 
ciples governing  the  joinder  of  parties,  we  include  within  the 
discussion  only  so  much  of  the  law  relating  to  a  change  of  in- 
terest by  assignment,  death,  marriage,  etc.,  as  is  necessary  to 
illustrate  the  application  of  these  principles,  and  the  change 
wrought  by  the  provisions  of  the  codes  relating  to  joinder.  The 
student  who  desires  to  examine  minutely  into  all  the  phases  of 
the  subject  will  find  a  very  clear  outline  and  treatment  of  the 
subject  in  Burrill's  work  on  Practice.1  But  before  treating  the 
specific  subject,  the  joinder  of  parties,  it  will  be  necessary  to 
consider  somewhat  the  underlying  questions :  Who  may  invoke 
the  judicial  power;  what  constitutes  a  cause  of  action;  and 
the  rule  that  actions  must  be  brought  by  the  real  party  in  in- 
terest ? 

§  20.  Who  may  invoke  the  judicial  power. —  RULE:  Every 
one  whose  legal  right  is  infringed  has  a  right  of  action.'  It  is 
said  that  the  end  of  society  is  the  protection  of  private  right.3 
The  most  important  function  of  the  judicial  department  is  the 
protection  of  individual  rights.  Modern  thought  cannot  con- 
ceive a  perfect  right  unconnected  with  the  means  of  judicially 
protecting  it.4  This  idea  has  been  crystallized  into  the  maxim, 
uoijus  ibi  remedium —  there  is  no  wrong  without  a  remedy,5 — 
and  has  become  the  corner-stone  of  our  judicial  system.  This 
maxim  is  adopted  as  a  part  of  the  common  law  of  England, 
and  must  be  associated  with  another  idea  derived  from  the 
Roman  law,  that  the  vital  principle  of  a  right  is  found  in  the 
obligation  to  respect  it,  and  the  resulting  power  to  enforce 
this  right  with  the  assistance  of '  the  state.6  This  principle 
takes  shape  in  the  constitutions  of  the  United  States  and 

instance,  placed  on  the  joinder  of  2 1  Chitty's  PI.  60-66. 

plaintiffs,    though   they  frequently  8  Andrews'  Am.  Law,  1027. 

caused  inconveniences,  nevertheless  4  Ashby  v.  White,  Ld.  Raym.  938,  1 

rested  on  the  perfectly  sound  idea  Smith's  L.  C.  473,  1  Eng.  RuL  Cas. 

that  A.  and  B.  ought  not  to  be  al-  521;  Marbury  v.  Madison,  1  Cranch, 

lowed  to  bring  jointly  in  one  action  163;  State  v.  Young,  29  Minn.  474 

independent  claims  against  X."  Law  8  Marbury  v.  Madison,  1  Cranch, 

Quarterly  Review,  July,  1893,  p  207.  137;  Ewell  v.  Dagg,  108  U.  S.  149. 

* 1  Burrill,  Prac.  58-68.    See  also  6  Bradlaugh  v.  Gassett  (1884),  L.  R. 

Chitty's  PL,  Phillips'  Code  PL,  and  12  Q.  B.  271;   Andrews'  Am.  Law, 

Bryant's  Code  PL  1026. 
3 


34  PAETIES   TO   ACTIONS.  [§  20. 

of  the  several  states,  inhibiting  the  legislative  branch  of 
government  from  impairing  the  obligation  of  a  contract, 
or  passing  an  ex  post  facto  law.  But  neither  of  these  rules, 
nor  both  together,  require  that  there  shall  be  a  judicial  rem- 
edy upon  every  contract.1  An  apparent  exception  to  the 
maxim  is  found  in  the  rule  now  established,  that  an  individ- 
ual cannot  sue  a  state  unless  expressly  authorized — a  rule 
which  did  not  always  obtain;2  but  this  rule  is  not  an  excep- 
tion to  the  rule,  ubi  jus  ibi  re?nedium,  for  the  reason  that,  as 
property  rights  are  created  by  society,  and  as  a  state  cannot 
commit  a  tort,  and  no  right  to  sue  upon  contracts  being  given, 
one  contracting  with  the  public  does  so  knowing  that  he  can 
have  no  judicial  remedy.  Property  can  be  taken  only  by  giv- 
ing just  compensation;  in  such  cases  the  public  must  be  the 
first  to  act,  and  must  act  by  its  officers,  and  in  such  cases  the 
individual  may  defend  against  the  public,  or  sue  the  officers  if 
they  fail  to  act  regularly  or  deal  justly. 

The  judicial  power  can  be  set  in  motion  in  civil  matters 
only  by  some  person  —  using  the  word  in  its  broadest  sense  — 
in  a  case  against  another  person.8  The  courts  cannot,  ex  mero 
motu,  set  themselves  in  motion,4  nor  have  they  power  to  decide 
questions  except  such  as  are  presented  by  the  parties  in  their 
pleadings.8  Vine  parties,  by  their  attorneys,  make  the  record, 
and  what  is  decided  within  the  issue  is  res  adjudicata;  any- 
thing beyond  is  coram  nonjudice  and  void.6 

As  a  corollary  of  the  first  proposition,  or  a  negative  state- 
ment of  the  same  rule,  it  follows  that  only  those  whose  rights 
are  infringed  can  have  an  action.  Not  every  one  benefited  by 
a  contract,  or  who 'is  intended  to  ba  benefited  by  it,  may 
maintain  an  action  upon  it.  '  Although  he  may  be  deprived  of 
a  valuable  benefit  by  the  breach  of  such  a  contract,  he  cannot 
maintain  an  action  for  its  breach.7  To  maintain  an  action 

1  Chisholm  v.  Georgia,  2  DalL  419;  States  v.  Arredondo,  6  Pet.  709;  Peo- 
State  v.  Young,  29  Minn.  474.  pie  v.  Liscomb,  60  N.  Y.  559. 

2  State  v.  Young,  29    Minn.  474;  8  Reynolds  v.  Stockton,  140  U.  S. 
Hans  v.  Louisiana,  134  U.  S.  1.  254;  Munday  v.  Vail,  84  N.  J.  L.  418. 

3  State  of  Georgia  v.  Stanton,   6  6Id.    See  also  Jacobson  v.  Miller, 
Wall  50-76;    Luther  v.   Borden,   7  41  Mich.  90;  Cromwell  v.  Sac  Co.,  94  . 
How.  1 ;  Fletcher  v.  Tuttle,  150  111.  41.  U.  S.  351. 

4  Kerfoot  v.  People,  51  III  App.  409;  7  Howsmon  v.  Trenton  Water  Co., 
Dicey  v.  Reed,  78  III  261;  United  119  Mo.  304 


§  20.]  PARTIES   TO   ACTIONS.  35 

by  an  individual  upon  a  contract  to  which  he  is  not  a  party, 
the  contract  must  be  one  in  which  he  has  an  interest,  and  he 
must  sustain  some  special  damage  not  common  to  others  situ- 
ated as  he  is.1  Neither  will  the  mere  appropriation  and  use 
of  a  benefit  by  one  person,  conferred  by  another,  sustain  an 
implied  assumpsit  to  pay  for  it,  and  furnish  the  basis  of  an 
action.2 

Damage  and  injury  must  unite* —  Nor  will  the  fact  that  one 
person  receives  a  financial  benefit  resulting  from  a  damage  to 
another  sustain  an  assumpsit.  It  must  in  some  manner  appear 
that  he  voluntarily  received  the  benefit.  Damage  and  benefit 
resulting  from  a  mere  trespass  cannot  be  the  basis  of  an  as- 
sumpsitt  Neither  will  a  damage  sustained  by  one'  person, 
caused  by  another  or  his  property,  in  all  cases  sustain  an  ac- 
tion. This  principle  is  expressed  in  the  maxim,  Damnum  dbsque 
injuria.  Damage  caused  by  the  acts  of  others  must  result 
from  a  breach  of  duty  due  to  the  person  damaged,  and  consti- 
tute an  infringement  of  his  rights.5 

The  rule  of  law,  as  well  as  of  equity,  in  the  case  of  injuries 
caused  by  mere  accident,  or  which  result  incidentally  from  the 
performance  of  a  legal  right,  is  that  the  loss  must  lie  where  it 
falls.6  Thus,  innocently  inducing  a  person  to  break  a  contract 
will  not  form  the  basis  for  an  action,7  unless  some  unlawful 
element  enters  into  the  means  of  inducing  the  breach;  and  in 
such  cases  the  basis  of  the  action  is  the  unlawful  act  of  the  one 
person  against  the  right  of  the  other.8 

But  in  the  modern  view,  the  wanton  and  malicious  interfer- 
ence with  the  rights  of  another,  even  though  it  be  by  mere 
persuasion  of  a  third  person,  which  occasions  loss  of  an  existing 
right,  will  constitute  a  valid  cause  of  action.9 

*  Kerfoot  v.  People,  51  111.  App.  409;        »  Gibson  v.  Leonard,  143  DL  182. 
P.,  Ft  W.  &  C.  Ry.  Co.  v.  Cheevers,       «  Cooley  on  Torts,  *80,  81. 
149  HI.  430;  High  on  Injunc.,  §  762;        'Kimball  v.  Harmon,  34  Md.  407,  6 

Pom.  Eq.  Jur.,  §1379;  Hartshorn  v.  Am.  R.  340;  Jackson  v.  Stanfield,  137 

S.  Reading,  3  Allen,  501;  E.  St.  Louis  Ind.  592. 
T.  O'Flynn,  119  III  200.  8  Lumley  v.  Gye  (1853),  2  EL  &  BL 

2  Boston  Ice  Co.  v.  Potter,  123  Mass.  216  (75  E.  C.  L.  R);   Mechera    on 
28,  25  Am.  R.  9;  s.  c.,  Hughes,  Tech.  Agency,  §  797;  Anson  on  Cont  210, 
Law,  13;  Bartholomew  v.  Jackson,  211.    See  Boyson  v.  Thorn,  98  CaL 
20  Johns.  28,  11  Am.  Dec.  237.  578;  S.  C.,  21  L.  R.  A.  233,  nota 

3  Bank  v.  Waterman,  25  Conn.  324.        9  8  Harvard  Law  Review,  449;  Gra- 

4  Cooley  on  Torts,  95.  ham  v.  St.  Charles  St.  Ry.  Co.,  10  S. 


36  PARTIES   TO    ACTIONS.  [§  21. 

There  must,  however,  exist  a  right  which  is  infringed.  For 
example,  the  mere  inducing  of  one  to  change  the  provisions  of 
a  will,  however  maliciously  done,  will  not  sustain  an  action  on 
the  part  of  one  deprived  of  a  legacy  fixed  in  the  original  will.1 

It  has  been  said  that  a  cause  of  action  must  include  both  an 
injury  and  a  case  of  damage ;  but  if  in  truth  the  plaintiff  has 
sustained  an  injury  —  that  is,  if  his  right  of  personal  security, 
or  right  of  private  property,  has  been  infringed, —  it  is  not 
necessary  in  all  cases  that  there  should  be  appreciable  dam- 
ages in  order  to  maintain  an  action.2  For  every  infringement 
of  the  right  of  personal  liberty,  or  personal  security,  the  law 
imports  damages;  and  wherever  the  infringement  of  the  right 
of  property  is  of  such  a  nature  that  its  continuation  might 
ripen  into  a  claim  of  right  upon  the  part  of  the  perpetrator,  or 
furnish  evidence  in  derogation  of  the  right  claimed,3  the  maxim, 
De  minimis  non  curat  lex,  does  not  apply.4  It  would  avail 
nothing  in  such  cases  to  plead  that  the  plaintiff  had  been  bene- 
fited.5 

§  21.  Actions  must  foe  prosecuted  by  the  real  party  in  inter- 
est —  Who  so  regarded  —  Assignment  and  transfer  of  rights 
of  action. —  RULE:  Choses  in  action  are  assignable,  but  personal 
torts  and  personal  stipulations  are  not  transferable.  Writers 
on  pleading  in  legal  actions,  even  at  the  present  date,  state  as 
an  operative  rule  the  ancient  and  obsolete  doctrine  that  choses 
in  action  are  not  assignable.  Prof.  Dicey,  in  his  treatise  on  Par- 
ties to  Actions,  gives  as  his  sixth  rule  that  the  right  to  bring  an 
action  cannot  be  transferred  or  assigned,  stating  that  this  rule 
is  involved  in  the  maxim  that  a  chose  in  action  is  not  assignable. 
Even  as  modified  by  his  subsequent  text,  the  rule  is  stated  too 
broadly. 

Broom  makes  a  more  accurate  statement  where  he  says:  "It 
is  indeed  a  well-known  rule  of  law  that  a  chose  in  action,  e.  g.t 

R   806   (La.);    Flood  v.  Jackson,  2  2lSuth.  Dam.  3,9;  Ashbyv.  White, 

Times  L.  R  276  (Q.  R  D.);  Morgan  v.  Ld.  Raym.  938,  1  Smith's  L.  C.  473. 

Andrews,  107  Mich.  3&  3  Harrop  v.  Hirst,  L.  R  4  Ex.  43,  1 

i  Hutchins  v.  Hutchins,  7  Hill,  104;  Eng.  RuL  Cas.  547,  and  nota 

Hughes,  Tech.  Law,  p.  9a    Vide  Kim-  4  Hughes,  Tech.  Law,  12,  la 

ball  v.  Harmon,  34  Md.  407,  6  Am.  R  5  Waterman  on  Trea,  §  12;  Druley 

840.    So  as  to  wife's  right  in  insnr-  v.  Adam,  102  III  201. 
ance  policy  for  her  benefit    K.,  T.  & 
M.  Co.  v.  Gravett,  49  III  App.  252. 


§  21.]  PARTIES   TO    ACTIONS.  37 

a  debt,  cannot  in  general  be  assigned  so  as  to  vest  in  the  assignee 
a  right  of  action  upon  it  in  his  own  name,  nor  do  causes  of  ac- 
tion already  accrued  run  with  the  property  in  goods  or  deeds."1 

A  complete  comprehension  of  the  subject  requires  an  under- 
standing of  what  is  intended  by  "the  right  to  bring  an  action" 
and  "a  chose  in  action"  and  the  words  "transferred"  and 
"assigned."  It  was  a  rule  of  the  ancient  common  law  that 
choses  in  action  were  not  assignable,  but  the  rule  was  very  soon 
relaxed  so  that  most  non-negotiable  choses  might  be  transferred, 
and  in  such  cases  the  suit  could  be  prosecuted  by  the  real  owner 
in  the  name  of  the  assignor.2  This  obligation  to  use  the  name  of 
the  assignor  was  imposed  even  where  the  original  promise  was 
in  form  to  the  promisee  and  his  assigns,3  unless  there  was  a 
new  promise  to  pay  the  assignee.4  When  this  state  of  the  law 
was  reached,  the  validity  of  such  transfers  was  established  and 
with  it  the  incidental  attributes  necessary  to  give  it  force  and 
efficacy,  viz.:  the  control  of  the  action  and  the  judgment  by 
the  assignee,  who  was  recognized  as  the  only  one  having  an  in- 
terest in  the  action.5 

The  distinction  between  choses  in  action  and  mere  personal 
torts  must  be  kept  clear.  The  former  comprehend  all  prop- 
erty rights  not  in  possession  which  may  be  enforced  by  action, 
whether  these  arise  by  a  tortious  act  towards  a  property  right 
or  by  a  breach  of  contract,  express  or  implied.  In  all  these 
cases  the  debt  or  damages  recoverable  constitute  a  thing  in  ac- 
tion.6 A  mere  personal  tort  is  not,  however,  embraced  within 
the  term  "  chose  in  action."  7 

The  modern  rule  is  that  choses  in  action  are  in  general  as- 
signable and  transferable  so  as  to  vest  in  the  assignee  or  legal 
representatives  the  right  to  bring  and  conduct  an  action  there- 
for. 

The  apparent  exception  to  the  rule,  viz. :  that  stipulations  for 
special  personal  services,  indicating  expressly  or  by  the  nature 

1  See  Andrews'  Am.  Law,  802.  4  Jessel  v.  Insurance  Co.,  supra. 

2  An  elaborate  note  in  later  edi-  53  Pom.  Eq.  Jur.  270,  275.    It  was 
tions  of  Cranch's  U.  S.  Reports  gives  and  is  essential  that  he  be  the  real 
fully  the  early  law  upon  the  subject,  owner.   Gruber  v.  Baker,  20  Nev.  459, 
1  Cranch,  App.  *423-*443.  9  L.  R.  A.  302. 

3  Jessel  v.  Insurance  Co.,  3  Hill,  88;  «  Andrews'  Am.  Law,  125. 
Diamond  M.  Co.  v.  Roeber,  106  N.  Y.  7  Id. 

473. 

177188 


38  PAKTIES   TO   ACTIONS.  [§  21. 

of  the  case  that  they  are  strictly  personal,1  is  not  a  real  excep- 
tion ;  for  the  stipulation  is  not  simply  that  a  particular  thing  be 
done,  but  that  a  particular  person  will  do  it,  and  if  the  agree- 
ment is  not  complied  with  there  is  no  right  of  action  to  assign.2 

Neither  the  term  "  tort "  nor  "  chose  in  action  "  includes  or  ex- 
cludes or  indicates  what  rights  of  action  are  assignable  or  trans- 
ferable, but  the  criterion  lies  in  another  direction,  that  is,  the 
personal  nature  of  the  right.  So  Prof.  Pomeroy,  speaking  of 
actions  which  survive  and  pass  to  personal  representatives  and 
are  also  assignable,  says,  according  to  the  doctrine  prevailing 
in  the  United  States,  all  claims  arising  from  contract,  express 
or  implied,  with  certain  well-defined  exceptions,  and  those  aris- 
ing from  torts  to  real  or  personal  property  from  frauds,  deceits 
and  other  wrongs  whereby  an  estate,  real  or  personal,  is  in- 
jured, diminished  or  damaged,  survive  and  are  assignable.3  It 
will  be  observed  that  all  of  the  rights  of  action  enumerated 
fall  within  the  proper  definition  of  a  chose  in  action,  and  are 
assignable  whether  they -arise  tortiously  or  otherwise.  But 
there  is  a  distinction  made  and  based  upon  public  policy  that 
a  mere  right  to  undo  a  transaction  relating  to  property  pro- 
cured by  fraud  and  deceit  may  not  be  assigned  either  in  law 
or  equity.4 

RULE:  An  existing  (accrued)  cause  of  action  for  tort  in  relation 
to  personal  or  real  property  is  a  thing  distinct  from  the  property 
itself^  and  does  not  pass  as  an  incident  to  a  conveyance  of  the  prop- 
erty. Except  in  those  jurisdictions  where  it  is  the  rule  that  real 
or  personal  property  held  in  adverse  possession  cannot  be  trans- 
ferred,5 it  is  admissible  for  an  owner,  either  in  possession  or  out  of 
it,  to  sell  the  property  and  transfer  with  it  accrued  causes  of  ac- 
tion (choses) ;  and  even  in  states  where  this  is  not  allowed  it  is  not 
every  possession  which  will  be  recognized  as  adverse.  Owners 
of  property  are  not  obliged  to  treat  every  act  of  a  third  person 

1 3  Pom.  Eq.  Jur.  284    For  exam-  performance  he  may  assign.    Sloan 

pie,  one  agrees  to  use  his  personal  v.   Williams,  138  111.  43.    See   also 

skill,  and  confidence  is  reposed  in  him  Boston  Ice  Co.  v.  Potter,  123  Mass.  28. 

personally.    In  such  case  he  cannot,  2  Id. 

while  the  contract  is  executory,  sub-  8  3  Pom.  Eq.  Jur.,  §  1278. 

stitute  another  in  his  place  either  by  43  Pom.  Eq.  Jur.,  §  1276;  Storrs  v. 

assignment  or  by  having  the  thing  St.  Luke's  Hosp.,  180  III  368;  Gruber 

contracted  for  done  or  furnished  by  v.  Baker,  20  Nev.  459. 

another;    but  the    right    of  action  5Erickson  v.  Lyon,  26  111.  App.  17;. 

which  accrues  to  him  by  complete  Sand  v.  Church,  152  N.  Y.  174. 


§  21.]  PARTIES   TO   ACTIONS.  39 

who  invades  their  right  of  property  or  possession  as  constitut- 
ing a  tortious  conversion,  but  they  may,  if  they  see  fit,  waive 
the  tort,  and  in  that  state  of  the  case  they  may  sell  the  prop- 
erty, conveying  a  good  title  to  their  vendee,  and  the  law  will 
recognize  that  the  cause  of  action  does  not  accrue  until  he  de- 
mands and  is  refused  the  possession.1 

The  reasons  upon  which  the  ancient  common-law  rule  (against 
assignments  of  choses)  was  based  were  never  very  generally  ap- 
proved, and  courts  of  equity  always  recognized  and  protected 
the  rights  of  parties  arising  under  the  purchase  and  assignment 
of  causes  of  action  which  were  not  merely  personal.2  And  in 
the  process  of  time  the  rules  of  equitable  assignment  were  rec- 
ognized in  the  courts  of  law  to  the  extent  of  allowing  the  as- 
signee to  bring  a  suit,  but  compelling  him  to  bring  it  in  the 
name  of  the  assignor,  giving  security.3 

This  was  simply  preserving  the  shadow  of  the  old  rule  while 
denying  its  substance ;  and  it  is  now  well  understood  that  con- 
tracts may  be  made  assignable  by  the  original  parties  if  they 
see  fit,  even  though  they  may  not  be  negotiable  in  their  char- 
acter,4 and  such  seems  to  have  been  the  rule  of  the  law  mer- 
chant as  recognized  in  England  from  the  earliest  times.5 

There  is  a  difference  between  the  right  to  substitute  parties 
to  an  executory  contract  providing  for  personal  service  and  the 
right  to  assign  a  cause  of  action  growing  out  of  the  perform- 
ance of  a  contract  for  personal  services,  and  it  is  well  settled 

1  Brady  v.  Whitney,  24  Mich.  154;  deed  may  be  granted  so  that  the 

Tome  v.  Dubois,  6  Wall.  548;  Wall  v.  writing  passes;   but  it  is  said  that 

De  Mitkiewicz,  9  Ct.  App.  Disk  CoL  the  grantee  cannot  sue  for  it  in  hia 

109.  own  name.    If  a  third  person  be  per- 

2 1  Cranch,  App.  423.    "  It  is  laid  mitted  to  acquire  the  interest  in  a 

down  in  our  old  books  that  for  avoid-  thing,  whether  he  is  to  bring  the  ac- 

ing  maintenance  a  chose  in  action  tion  in  his  own  name  or  in  the  name 

cannot  be  assigned  or  granted  over  of  the  grantor,  does  not  seem  to  me 

to  another.  Co.  Lit.  214a,  266a;  2  Roll,  to  affect  the   question   of  mainte- 

45, 140.    The  good  sense  of  that  rule  nance."   Master  v.  Miller,  4  Term  R. 

seems  to  me  to  be  very  questionable;  340. 

and  in  early  as  well  as  modern  times  3  Ransom  v.  Jones,  1  Scam.  291; 

it  has  been  so  explained  away  that  it  Palmer  v.  Merrill,  6  Gush.  282,  52  Am. 

remains  at  most  only  an  objection  to  Dec.  782. 

the  form  of  the  action  in  any  case.  *  Diamond  Match  Co.  v.  Roeber, 

In  2  Roll  Abr.  45  and  46,  it  is  ad-  106  N.  Y.  473;  Burrill's  Pr.  60. 

mitted  that  an  obligation  or  other  5 1  Cranch,  App.  427. 


40  PARTIES   TO   ACTIONS.  [§  21. 

that  such  a  cause  of  action  may,  under  some  circumstances,  be 
assigned.1 

So  where  the  contract  relates  to  the  keeping  or  disposition 
of  property,  the  subject  of  the  contract  being  the  subject  of 
sale,  the  rights  of  the  parties  under  the  contract  may  be  as- 
signed.2 

The  result  of  the  authorities  is,  first,  that  wherever  the  sub- 
ject of  the  contract  is  that  which  may  be  a  subject  of  sale, 
the  contract  may  be  assigned  with  the  same  facility  with  which 
the  thing  itself  may  be  sold;  second,  that  where  the  subject 
of  the  contract  is  the  performance  of  personal  services,  in  most 
cases  after  the  breach  or  performance,  such  contract,  the  cause 
of  action  arising,  may  be  assigned  in  such  a  manner  as  to  vest 
the  beneficial  interest  in  the  assignee,  even  though  a  tort  may 
be  involved.3  But  it  does  not  lie  in  the  power  of  one  party  to 
an  executory  contract,  without  the  consent  of  the  other,  to 
substitute  another  as  the  party  who  may  or  shall  perform  it.4 

So  that  while  personal  contracts  cannot  be  changed  before 
performance,  most,  if  not  all,  pure  choses  in  action  may  be  as- 
signed. But  causes  of  action  for  mere  personal  torts  are  not 
assignable.5 

The  rule  which  provides  that  all  actions  shall  "be  "brought  in 
the  name  of  the  real  party  in  interest  has  wisely  dispensed  with 
the  shadow  and  allowed  the  substance  to  control.6 

1  Sloan  v.  Williams,  138  I1L  46.  signable  at  law.    In  McKee  v.  Judd, 

2  People    v.  Tioga,  19  Wend.   73;  2  Kern.  625,  it  is  held  '  that  demands 
Blackwood  v.  Brown,  32  Mich.  104;  arising  from  injuries  strictly  personal 
McKee  v.  Judd,  2  Kern.  622;  An-  (whether  arising  from  tort  or  con- 
drews'  Am.  Law,  802.  tract)  are  not  assignable,  but  that  all 

3 "  But  conceding  that  a  tort  be  others  are.*    3  Kern.  333-335,  336,  15 

one  of  the  elements  that  go  to  make  N.  Y.  432."    Byxbie  v.  Wood,  24  N. 

up  this  cause  of  action,  it  will  be  Y.  607-612.    See  Ackley  v.  N.  C.  C. 

found  to  be  assignable.    It  will  be  Ry.  Co.,  171  IlL  100,  for  discussion 

seen  to  be  of  that  class  of  torts  the  and  citation. 

right  of  action  for  which  would  sur-  4  Boston  Ice  Co.  v.  Potter,  123  Mass, 

vive  to  the  personal  representatives  28. 

of  the  claimant;  and" 'the  power  to  8  Andrews'  Am.  Law,  803. 

assign  and  to  transmit  to  personal  6Zabriskie  v.  Smith,  13  N.  Y.  333; 

representatives  are  convertible  prop-  Andrews'  Stephen's  PL  32;  Ackley 

ositions.'  Zabriskie  v.  Smith,  3  Kern.  v.  N.  C.  C.  Ry.  Co.,  171  I1L  100.    It 

833.    And  further,  it  is,  within  the  depends  upon  statutory  provision,  in 

decisions  both  before  and  since  the  such  cases,  as  to  the  name  in  which 

code,  of  a  nature  that  was  formerly  the  suit  shall  proceed.     Draper  v. 

assignable  in  equity,  and  is  now  as-  Fletcher,  26  Mich.  154. 


§  22.]  PARTIES   TO   ACTIONS.  41 

§22.  Privity. —  RULE:  Persons  not  parties,  for  whoselencfit 
a  contract  is  made  and  who  sustain  the  relation  of  privity  to  the 
subject  or  the  consideration,  may  sue  upon  it.  It  frequently 
happens  that  a  third  person  is  named  as  beneficiary  in  a  con- 
tract to  which  he  is  not  a  party,  and  in  many  cases  a  party  un- 
conscious of  the  existence  or  creation  of  a  right  may  sue  upon 
a  contract  creating  it.  This  result  is  brought  about  in  two 
ways:  First,  under  the  doctrines  of  agency,  by  which  one  per- 
son is  allowed  to  be  represented  by  another.1  Second,  under 
the  doctrine  of  privity.2 

If  the  distinction  between  these  two  grounds  is  kept  clearly 
in  mind,  much  of  the  apparent  confusion  in  decisions  is  avoided. 

By  the  doctrines  of  privity,  persons  standing  in  certain  rela- 
tions 3  to  those  who  actually  make  the  contract  and  pass  the 
consideration,  or  furnish  the  subject-matter,  are  sometimes  held 
to  have  a  sufficient  connection  with  the  contract  or  the  subject- 
matter  to  be  allowed  to  avail  themselves  of  stipulations  made 
for  their  benefit. 

The  doctrine  of  privity  proceeds  upon  the  theory  that  the 
law  operating  on  the  conduct  of  the  party  creates  a  duty  or 
implies  an  obligation,  or,  as  it  is  said,  establishes  privity.4 

Third.  It  is  claimed  that  there  is  recognized  in  some  juris- 
dictions a  third  rule,  viz. :  That,  irrespective  of  agency  or  privity, 
any  person  for  whose  benefit  a  simple  contract  is  made  may 
enforce  it  by  an  appropriate  action  in  his  own  name;  and  while 
there  are  expressions  which,  standing  alone,  will  justify  the 
view,  it  is  doubtful  if  any  state  in  the  Union  is  committed  by 
decision  to  that  rule.5 

1  Some  of  the  extreme  cases  allow-  other  ground  of  decision  was  the  re- 
ing  a  third  party  to  sue  on  a  promise  lation  of  debtor  and  creditor  which 
made  to  another  for  his  benefit  really  existed  between  the  third  person  and 
proceed  on  the  ground  of  agency  —  the  promisee,  and  the  earlier  cases 
an  entirely  distinct  principle.    See  relied  on  are  of  the  same  character. 
Marston  v.  Bigelow,  150  Mass.  45,  5  4  Lawrence  v.  Fox,  supra, 

L.  R.  A.  43,  and  cases.    Even  in  Law-  8  Early    Massachusetts   and   New 

rence  v.  Fox,  20  N.  Y.  268,  a  leading  York  cases  state  the  rule  broadly, 

case,  one  of  the  grounds  is  that  of  but  these  decisions  fall  far  short  of 

agency.  the  rule.    Marston  v.  Bigelow,  supra. 

2  The  doctrine  of  privity  determines  Lawrence  v.  Fox  is  the  extreme,  and 
who  may  enforce  a  contract.  every  later   case  has  taken  views 

3  In  Lawrence  v.  Fox,  supra,  an-  closer  to  the  rule  requiring  privity. 


42  PARTIES   TO    ACTIONS.  [§  22. 

This  result  is  not  based  solely  on  the  fact  of  the  agree- 
ment, but  on  some  collateral  fact  establishing  the  relation  of 
privity.1 

"When  the  defendant  has  in  his  hands  money  that  in  equity 
and  good  conscience  belongs  to  another,  the  question  of  privity 
cannot  arise.2  The  law  in  such  a  case  implies  a  promise  to  pay.a 
Thus,  when  a  purchaser  deposits  money  in  the  hands  of  a  third 
person  to  pay  for  the  thing  purchased,  the  seller  may  maintain 
an  action  against  the  person  in  whose  hands  the  money  is  placed 
for  the  sum  so  deposited.4 

The  rules  applicable  to  the  parties  to  actions  upon  simple 
contracts  are  the  same  whether  the  contract  is  express  or  im- 
plied.5 

RULE  :  In  cases  of  sealed  instruments,  the  rule  has  quite  gen- 
erally ~been  that  none  but  a  covenantee  may  maintain  an  ac- 
tion on  the  contract,  tJwugh  it  may  have  Ijeen  made  for  an- 
other's "benefit*  In  such  cases  to  allow  a  principal  or  cestui 
que  trust  to  sue  at  will  in  his  own  name  would  destroy  the 
legal  relation  implied  in  the  case  of  personal  covenants.  In 
such  cases  neither  the  legal  nor  equitable  rights  involved  in  the 
contract  are  vested  in  the  cestui  que  trust."1  'The  common  law 
did  not  allow  justice  to  be  defeated  by  a  refusal  by  the  trustee 
to  seek  a  remedy.  In  such  cases  the  real  party  interested 
might  use  the  name  of  the  trustee  and  prosecute  the  suit,  giv- 
ing indemnity  for  costs,  and  the  trustee  could  not  defeat  the 
action  by  collusively  releasing  or  attempting  to  dismiss  it.8 
There  is  a  tendency  to  relax  this  rule  and  disregard  the  mere 
formal  distinction  between  sealed  and  unsealed  contracts.9 

1  As  to  what  establishes  privity,  see  6Gautzert  v.  Hoge,  73  III  30;   1 

Andrews'  Am.  Law,  796.  Chitty's  PL  4;  Pratt  v.  Thornton,  28 

2 1  Cranch,  App.  423-443.  Me.  355;  Henricus  v.  Englert,  137  N. 

a  Alderson  v.  Ennor,  45  111.  128 ;  Tay-  Y.  488. 

lor  v.  Taylor,  20  III  650;  Spencer  v.  '  Western  Ry.  Co.  v.  Nolin,  48  N.  Y. 

Towles,  18  Mich.  9;  Hosford  v.  Ka-  513;   1  Chitty's  PL  (16th  Am.  ed.), 

tiouse.  45  id.  620.  p.  4,  notes  /  and  k,  and  p.  9.  note  y. 

*Benner  v.  Weeks,  159  Pa.  St.  504;  SQapen  v.  Barrows,  1  Gray,  381; 

General  Mut.  Ins.  Co.  v.  Benson,  5  3  Chitty's  Gen.  Pr.  128,  n.;  Sumner 

Duer,  16a    See  1  Cranch,  App.  (U.  S.)  v.  Sleeth,  87  11L  500;  Mountstephen 

424  v.  Brooke,  1  Chitty,  380,  n.;  Berry  v. 

5  Church  v.  Imperial  Gas  Light  Co.,  Gillis,  17  N.  H.  9,  43  Am.  Dec.  584 

6  Ad.  &  E.  846.  9  Andrews'  Am.  Law,  795. 


§  22.]  PARTIES   TO    ACTIONS.  43 

Rules  of  privity.— The  following  rules  may  be  taken  as 
quite  well  established  by  the  consensus  of  opinion: 

Under  ordinary  circumstances  one  who  is  not  a  party  or  a 
privy  to  a  contract  cannot  be  bound  by  it  without  his  consent.1 

The  law  will  not  allow  one  to  derive  any  advantage  from  a 
contract  in  which  he  neither  has  any  pecuniary  interest  nor 
takes  any  steps  to  bring  about.2 

Under  certain  circumstances  and  with  important  limitations 
one  party  may  be  allowed  to  derive  an  advantage  from  a  prom- 
ise made  for  his  benefit,  even  though  he  has  not  had  a  hand  in 
its  making. 

The  right  of  a  party  to  maintain  an  action  on  a  promise,  not 
under  seal,  made  by  another  for  his  benefit,  although  formerly 
much  controverted,  is  now  the  prevailing  rule.  Every  state, 
under  some  circumstances,  allows  this.3 

But  in  order  to  make  an  enforceable  action  of  this  kind,  the 
third  person  in  whose  favor  the  promise  is  made  must  be  in 
privity  either  in  consideration  or  a  privy  to  the  stipulation ; 
i.  0.,  there  must  be  some  relationship  of  debtor  or  creditor, 
some  legal  or  equitable  interest,  somev  obligation  growing  out 
of  status  or  the  like,  upon  which  to  found  the  necessary  equity 
of  allowing  a  third  person  who  has  had  nothing  to  do  with  the 
making  of  a  contract,  and  may  not  even  know  of  its  forma- 
tion, a  remedy  upon  it  in  the  courts.4 

There  must,  however,  be  some  relation  of  duty  or  liability 
between  the  promisee  and  the  third  person.5 

1  Boston  Ice  Co.  v.  Potter,  123  Mass,  unnaturally  applied  to  this  ruling  of 
28.  Lawrence  v.  Fox,  the  courts  after  a 

2  Vrooman  v.  Turner,  69  N.  Y.  280.  while  started  back.  '  I  do  not  under- 
The  contract  of  life  insurance  is  ex-  stand,'  said  Rapello,  J.,  'that  the  case 
ceptional  where  the.assured  procures  of  Lawrence  v.  Fox  has  gone  so  far 
a  policy  for  the  benefit  of  a  third  as  to  hold  that  every  promise  made 
person.    The  latter  may  sue  on  the  by  one  person  to  another,  from  the 
policy  without  regard  to  knowledge  performance  of  which  a  third  person 
of  its  having  been  made  or  the  exist-  would  derive  a  benefit,  gives  a  right 
ence  of  an  insurable  interest.  Guard-  of  action  to   such  third  party,  he 
ian  Ins.  Co.  v.  Hogan,  80  111.  35.  being  neither  privy  to  the  action  nor 

3Herrick  v.  Lindsay,  93  U.  S.  143;  the  consideration.'"    See  Linneman 

Austin  v.  Seligman,  18  Fed.  R.  519;  v.  Moross,  98  Mich.  118. 

Andrews'  Am.  Law,  797.  5  Townsend  v.  Rackham,  143  N.  Y. 

*  Prof.  Wharton,  in  a  valuable  note  516;  Coleman  v.  Huyler,  85  Hun,  548, 

to  Austin  v.  Seligman,  18  Fed.  R.  525,  33  N.  Y.  S.  360. 
says:  "But  from  the  extension  not 


44:  PARTIES   TO   ACTIONS.  [§  23. 

It  is  required  in  all  states  that  some  relation  to  the  subject- 
matter  of  the  contract  or  the  consideration,  or  some  duty  to 
the  person  who  obtains  the  promise,  must  be  borne  by  the  third 
person  in  order  that  he  shall  be  allowed  a  benefit  under  it.1 

Of  the  different  classes  of  privity  there  have  been  recognized 
privity  to  the  stipulation,  i.  e.t  where  the  party  obtaining  the 
promise  was  so  related  to  the  third  person  claiming  as  to  be  in 
some  sense  termed  his  agent,2  though  this  relation  may  not  be 
disclosed ;  or  one  may  be  so  interested  in  the  subject-matter  that 
any  contract  in  relation  to  it  must  inure  for  his  benefit.  This 
may  be  called  privity  in  estate. 

Privity  in  Hood,  or  near  relationship,  has  sometimes  been 
recognized  as  sufficient,  but  this  in  itself  is  not  sufficient  unless 
that  relationship  is  one  where  there  is  some  obligation  upon  the 
parson  contracting  owing  to  the  third  person  in  whose  favor 
he  secures  the  promise.3 

RULE  :  In  matters  of  agency,  it  is  now  well  established  that  an 
undisclosed  principal  'may  generally  sue  in  his  own  name  on  a 
contract  made  in  the  name  of  tlie  agent  while  acting  within  the 
scope  of  his  duty* 

§  23.  The  name. —  It  is  not  essential  that  a  party  suing  or 
sued  upon  contract  should  be  designated  by  the  same  name 
which  he  used  in  making  the  contract ;  for,  if  he  made  the  con- 
tract and  is  entitled  to  a  benefit  under  it,  he  may  sue  or  be 
sued  in  his  own  name.5  But  the  name  used  must  indicate  a 
legal  person,  i.  <?.,  an  entity  natural  or  artificial  which  the  law 
recognizes  as  capable  of  having  and  owing  rights.6  Suits  by 
idiots,  infants,  etc.,  should  add  the  names  of  the  conservators, 
guardians,  etc.7  It  has  been  decided  by  the  supreme  court  of 
the  United  States  that  an  action  cannot  be  brought  in  that 
court  in  the  name  of  a  steamboat.8 

1  See  article  in  10  Harv.  Law  Rev.        6  Mexico  Mill,  etc.  v.  Yellow  Jacket 
180;  Lovell  v.  Williams,  125  Mass.  439;  Co.,  4  Nev.  40, 97  Am.  Dec.  510;  Marsh 
Prichard  v.  Budd,  76  Fed.  R  710-713;  v.  Astoria  Lodge,  27  111.  421;  Ada  St. 
Andrews'  Am.  Law,  816.    See  Eleo  M.  E.  Church  v.  Garsney,  66  111.  132; 
tion  of  Parties,  p.  45.  Schuetzen  Bund  v.  Agitation  Verein, 

2  This  is  one  of  the  grounds  of  Law-  44  Mich.  313. 

rence  v.  Fox,  20  N.  Y.  268.  7  Martin  v.  Dufalla,  50  111.  App.  371 ; 

3Marston  v.  Bigelow,  150  Mass.  45,  Lang  v.  Whiddam,  2  N.  H.  437;  Fox 

5  L.  R.  A.  43.  v.  Minor,  32  CaL  119;  Hawes  on  Par- 

4  See  post,  Specific  Rules,  ch.  III.  ties,  §  3. 

8Steinfeldt  v.  Taylor,  51  III  App.  8 Steamboat  Burns,  9  Wall.  237. 
399. 


§  24.]  PARTIES  TO  ACTIONS.  45 

In  attachment  suits  it  is  important  that  the  suit  be  legun 
correctly  as  to  the  name  of  the  defendant  because  of  the  in- 
ability to  change  the  affidavit  nuncpro  tune.1 

Every  man  may  at  different  times,  or  at  the  same  time,  oc- 
cupy different  relations  and  act  in  different  capacities,  and  rep- 
resent separate  and  perhaps  antagonistic  interests.  In  such 
cases,  suing  or  being  sued  in  one  capacity  ought  not  in  prin- 
ciple to  bind  him  in  another  capacity,  except  so  far  as  he 
would  be  bound  by  the  doctrine  of  actual  notice.2  Generally 
one  is  not  bound  personally  by  an  act  done  in  a  representative 
capacity.3  The  defense  that  the  plaintiff  is  not  the  real  party 
is  one  that  can  be  waived,  and  to  be  availed  of  must  be  specially 
pleaded.4 

§  24.  Election  of  parties. —  It  frequently  happens  that  sev- 
eral persons  are  sufficiently  interested  or  sustain  a  sufficient  re- 
lation to  the  transaction  out  of  which  an  action  grows  as  to  be 
properly  joined  as  plaintiff  or  defendant,  and  in  some  cases 
there  may  be  an  election  or  choice  in  the  matter  of  either  the 
parties  plaintiff  or  the  parties  defendant;  e.  g.,  it  has  been  very 
much  discussed  in  this  country  whether  the  shipper  or  con- 
signor can  maintain  an  action  against  a  common  carrier  for 
damages  done  to  goods  after  they  have  been  received  by  such 
carrier  for  the  purpose  of  carriage,  and  before  they  have  been 
delivered  to  and  received  by  the  consignees,  when  the  shipper 
or  consignor  had  no  right  of  property,  general  or  special,  in 
the  goods,  and  no  right  or  interest  in  their  safe  carriage,  ex-  ^ 
cept  that  arising  from  the  bill  of  lading.5  In  such  cases  it  is 
now  well  settled  that  either  a  bailee  who  is  consignor  or  the 
real  owner  or  the  consignee  may  sue; 6  and  even  where  the  con- 

iPeck  v.  Still,  3  Cona  157;  Flood  SKelsea  v.  Ramsey  et  al.,  55  N.  J. 

v.  Eandall,  72  Me.  439.    It  is  not  im-  L.  320,  22  L.  R  A.  415;  Great  W.  Ry. 

possible  to  amend  as  to  the  name  if  Co.  v.  McComas,  33  111.  186,  cited  in 

that  given  is  descriptive;  here  change  Carter  v.  S.  Ry.  Co.  (Ga.),  36  S.  E.  R. 

and  amendment  are  different.    Bar-  308.    In  such  cases  the  cause  of  ac- 

ber  v.  Smith,  41  Mich.  138.  tion  may  be  on  the  contract  or  the 

2  Rathbone  v.  Hooney,  58  N.  Y.  467;  common-law  liability  arising  out  of 
Black  on  Judgments,  §  536.  the  relation,  and  this  permits  an  elec- 

3  Stuber  v.  McEntee,  142  N.  Y.  200.  tion  as  to  the  form  of  action,  whether 
And  vide  cases  cited  in  38  Cent  Law  it  be  ex  contractu  or  ex  delicto.    See 
J.  381.  for  clear  discussion,  Spence  et  aL  v. 

*  Bowser  v.  Matterly,  137  Ind.  649.    N.  W.  Ry.  Co.,  supra. 
»  Spence  et  aL  v.  N.  W.  Ry.  Co.,  92 
Va.  102. 


46  PAETIES   TO   ACTIONS.  [§  25. 

signer  is  a  mere  agent,  the  action  may  proceed  in  his  name, 
and  the  fact  of  agency  will  not  abate  the  action.1  This  results 
from  the  rule  that  the  carrier  cannot  dispute  the  consignor's 
title.2  So  in  some  cases  of  privity,  when  a  promise  is  made  by 
one  for  the  benefit  of  a  third  person,  either  the  promisee  or 
the  third  person  may  sue.8 

A  party  with  whom  a  contract  is  made  by  an  agent  without 
disclosing  his  agency  has  the  right  to  sue  either;  and  although 
it  has  been  held  that  he  might  sue  each  separately,  the  prevail- 
ing rule  is  that  he  has  but  an  election  to  sue  one.4  Whenever 
the  right  is  merely  that  of  election,  the  election  once  made  pre- 
cludes taking  any  further  action  against  another  party,  and  the 
rule  in  this  regard  is  that  any  deliberate  action  after  full  knowl- 
edge will  constitute  an  election.5  This  right  of  election  should 
be  clearly  distinguished  from  the  right  of  concurrent  remedies 
against  several.6 

§  25.  Joinder  of  parties  under  the  common  law — Plaint- 
iffs in  actions  ex  contractu. —  Where  a  cause  of  action  which 
according  to  the  fact  or  the  legal  fiction  indulged  in  all  juris- 
dictions, allowing  a  party  whose  rights  are  violated  to  waive 
the  tort  and  sue  upon  an  implied  contract,7  is- considered  as  ex 
contractu,  and  several  persons  are  interested  in  the  recovery, 
the  question  arises,  who  may  or  who  must  join  as  plaintiffs  ? 

The  rules  of  the  common  law  as  to  the  joinder  of  parties 
in  actions  at  law  were  based  upon  a  strict  adherence  to  the 
nature  of  the  rights  to  be  enforced;8  the  relation  of  the  parties 
to  such  rights  and  the  mode  of  trial;  and  instead  of  being  ex- 

1  Carter  v.  S.  Ry.  Co.,  supra.  plaintiffs,  though   they   frequently 

8  Great  \V.  Ry.  Co.  v.  McComas,  caused  inconvenience,  nevertheless 

supra,  rested  on  the  perfectly  sound  idea 

3  Babeock  v.  Chase,  92  Hun,  264  that  A.  and  R  ought  not  to  be  al- 

4  Andrews'  Am.  Law,  81&.  lowed  to  bring  jointly  in  one  action 

5  Id.  independent  claims  against  X.    R  S. 
*Post,  p.6a  C.,  O.  XVI,  R  1,  might  indeed  ver- 

7  See  Election  of  Remedies,  post,  bally  be  construed  so  as  to  remove 
Ch.  IV.  all  limits  on  the  joinder  of  plaintiffs. 

8  Sandesv.  \Vildsmith  [1893],  1Q.B.  In  Sandes   v.  Wildsmith,  however 
771,  is  a  useful  reminder  of  the  con-  (which  should  be  contrasted  with 
stantly  forgotten  fact  that  the  old  Gort  v.  Rowney,  17  Q.  R  Div.  625), 
rules  of  pleading,  thought  technical  the  queen's  bench  division  have  de- 
and  rigid,  did  nevertheless  often  rest  cided  that  this  construction  is  wrong, 
on  sound  principles.    The  limits,  for  and  that  A.  and  R  cannot  join  in 
instance,  placed  on  the  joinder  of  bringing  an  action  against  X.  for 


§  25.]  PARTIES   TO   ACTIONS.  47 

cessively  technical,  illogical  and  not  based  upon  facts,  as  is 
sometimes  asserted,1  were  the  natural  results  of  the  facts  con- 
stituting the  cause  of  action  and  the  relation  of  the  parties 
thereto,  and  their  various  interests  therein,  and  the  adapt- 
ability of  the  issue  to  be  joined  between  them  to  trial  by  a 
jury;2  and  in  the  provisions  of  the  codes,  there  has  not  been 
so  radical  a  departure  from  these  rules  as  is  generally  supposed 
by  those  who  are  acquainted  only  with  the  provisions  of  the 
codes  and  do  not  thoroughly  understand  those  of  the  common 
law.  Those  who  would  understand  the  code  must  bear  in  mind 
that  the  facts  constituting  the  cause  of  action  are  not  changed 
by  the  code  of  procedure.  The  common  la\v  regards  a  cause 
of  action  as  an  entity  or  a  single  thing,3  and  the  code  has  not 
changed  this  view.4  The  common  law  required  a  cause  to  be 
tried  upon  one  or  several  distinct  issues  between  different 
sets  of  parties,  while  courts  of  equity,  in  cases  where  there 
was  no  remedy  at  law  or  the  legal  remedy  was  inadequate, 
could  take  jurisdiction  and  had  the  power  to  adjust  all  of  the 
rights  of  the  various  parties  in  or  to  the  subject-matter  of  the 
litigation;  and  as  the  theory  of  chancery  procedure  did  not 
contemplate  an  issue  or  a  jury  trial,  the  chancellor  had  power 
to  bring  before  him.  all  the  parties  interested  in  the  case.8 

The  rules  of  the  common  law  as  to  who  shall  or  may  be 
parties  to  suits  have  not  been  abrogated  or  repealed  by  the 
code;  they  have  been  modified,  but  in  no  sense  can  the  code 
system  be  said  to  be  a  new  or  substituted  one.  Professor 
Pomeroy  expresses  the  idea  happily  by  calling  it  a  reformed 
procedure.6 

slanders,  some  of  which  are  alleged  'Dicey  on  Parties,  *38;  Scott  v. 

to  be  spoken  of  A.  solely,  and  some  Goodwin,  1  B.  &  P.  67. 

of  which  are  alleged  to  be  spoken  of  4  Estabrook  v.  Messersmith,  18  Wis. 

B.  solely.    The  decision  is  satisfac-  545;  Clark  v.  Cable,  21  Mo.  223;  Rainey 

tory  as  showing  a  return  on  the  part  v.  Smizer,  28  id.  310;  L,  B.  &  W.  Ry. 

of  the  courts  to  the  principles  as  con-  Co.  v.  Adamson,  114  Ind.  283;  Gardner 

trasted  with  the  mere  technicalities  v.  Ogden,  22  N.  Y.  327,  78  Am.  Dec. 

of  sound  pleading.    Law  Quarterly  172;  U.  P.  Ry.  Co.  v.  Kelley,  4  Colo. 

Rev.,  No.  XXXV,  p.  208;  also  post,  App.  325. 

p.  48.  8  Fellows  v.  Fellows,  4  Cow.  682- 

1  Pomeroy,    Code    Rem.    (3d   ed.),  699.   See  Langdell's  Summary  of  Eq. 
g§  192,  193;  Bliss,  Code  PL  (2d  ed.),  PL,  §  41. 

§§  61,  62,  63,  73,  75.  «  N.  Y.  &  N.  H.  Ry.  Co.  v.  Schuyler 

2  See  Voorhis  v.   Childs'  Ex'r,  17    et  aL,  17  N.  Y.  593. 
N.  Y.  354. 


48  PARTIES   TO   ACTIONS.  [§  26. 

Most  of  the  writers  upon  code  procedure  admit  that  to 
understand  the  provisions  of  the  code  one  must  understand  the 
law  and  equity  rules  of  procedure  from  which  it  is  derived. 
Thus,  Pomeroy  says l  these  common-law  rules  remain  in  force 
except  as  modified  or  abolished  by  the  reformed  procedure. 

§  26.  The  rules  for  determining  what  are  joint  and  sev- 
eral rights  are  strictly  rules  of  substantive  law,  but  are  com- 
monly discussed  in  works  upon  pleading  and  damages.2  These 
rules  are,  however,  the  bases  of  determining  who  shall  be 
parties  to  actions,  and  are  determined  by  a  consideration  of 
two  things :  the  construction  of  the  language  of  contracts,  or 
the  interest  which  the  parties  have  in  things  real  or  personal. 
And  these  considerations  are  just  as  important  under  the  code 
as  they  were  at  common  law,  as  appears  from  the  words  of  the 
codes. 

The  important  provisions  of  the  codes,  so  far  as  the  subject 
in  hand  is  concerned,  are  three,  viz. : 

First.  All  persons  having  an  interest  in  the  subject  of  the 
action  and  in  obtaining  the  relief  demanded  may  join  as  plaintiffs 
except  as  otherwise  provided. 

Second.  (It  is  otherwise  provided.)  That  all  parties  who  are 
united  in  interest  must  be  joined. 

Third.  (A  proviso  of  the  second.)  But  if  the  consent  of  any 
one  who  should  be  joined  as  plaintiff  cannot  be  obtained  he 
may  be  made  defendant,  the  reason  thereof  being  stated. 

Happily,  in  accordance  with  the  plan  of  this  work  we  may 
consider  these  provisions  of  the  code  and  the  common  law  to- 
gether, and  in  this  manner  elucidate  both  and  show  their  points 
of  similarity  and  difference. 

What  contracts  or  interests  are  joint,  joint  and  several,  or 
several?  —  A  contract  with  two  or  more  jointly  is  not  a  con- 
tract with  each  or  any  severally.3  A  cause  of  action  arising 
by  the  breach  of  a  joint  right  created  by  contract,  whether  it 
be  evidenced  by  specialty  or  simple  contract,  belongs  to  all.4 

1  Pomeroy,  Code  Rem.,  §  194.    See  8  Dicey  on  Parties,  104;   Peck  v. 
also  Bliss,  Code  PL  (3d  ed.),  §  62.  Sill,  3  Conn.  157;  Cabell  v.  Vaughan, 

2  See  1  Sutherland  on  Dam.,  §  128;  1  Saund.  291;  Wighton  v.  Smith,  57 
1  Saund.  154-291,  and  notes;  1  Chitty's  Neb.  772. 

PI.  9, 10;  a  late  presentation  in  1  Eng.  <Stachely  v.  Pierce,  28  Tex.  328; 
RuL  Cases,  p.  156,  American  notes  by  Stradfield  v.  Holliday,  3  Term  R.  782; 
Irving  Browne.  Gould  on  PL  197;  Clark  v.  Cable,  21 

Mo.  223. 


§  26.]  PARTIES   TO   ACTIONS.  49 

Contracts  to  which  there  were  more  than  two  parties  on  one 
side  are  either  joint,  several,  or  joint  and  several.  The  courts 
determine  by  rules  of  construction  from  the  language  and  the 
interest  of  the  parties  the  nature  of  the  contract.1  It  is  as- 
serted2 that  there  can  be  no  such  thing  as  a  joint  and  several 
right  given  by  a  contract  so  that  the  obligees  or  promisees  may 
have  the  option  to  sue  together  or  alone.3 

This  is  an  inaccurate  use  of  terms.  The  same  contract  may 
carry  a  number  of  separate  and  distinct  covenants,  and  some 
of  these  may  be  joint  and  some  several  as  to  obligees.4  But 
even  with  this  modification  the  rule  is  too  broadly  stated.  The 
rule  seems  to  be  that  where  the  interest  is  common,  though 

O 

the  covenant  be  joint,  the  plaintiffs  may  join  or  sue  alone.5 
But  when  the  legal  interest  of  the  parties  is  joint  and  the  ac- 
tion is  ex  contractu,  the  parties,  if  living,  must  all  be  joined.8 

In  case  the  suit  was  based  upon  an  implied  contract,  as 
where  the  plaintiffs  elected  to  waive  the  tort  and  sue  in  as* 
sumpsit,  the  nature  of  the  interest  of  the  plaintiffs  determined 
their  right  or  obligation  to  join.7  It  must  be  observed  that 
the  language  used  does  not  alone  fix  the  nature  of  right  or  ob- 
ligation. Though  the  terms  of  a  covenant  are  joint  and  sev- 
eral, if  the  whole  instrument  shows  the  interest  and  the  cause 
of  action  to  be  joint,  the  parties  plaintiff  must  join; 8  and  when 
the  interest  of  the  covenantees  is  shown  by  the  contract  to  be 
several,  each  may  sue  alone,  though  the  language  is  joint;9 
but  if  the  words  are  clear,  showing  an  intention  to  confer  a 
joint  or  a  several  right,  the  court  will  not  go  outside  of  the 
deed.10  If  part  of  the  covenantees  have  no  beneficial  interest, 

1  Duncan  v.  Willis,  51  Ohio  St.  433;  6  Harris  v.  Swanson,  62  Ala.  299; 
Alexander  v.  Jacoby,  23  Ohio  St.  358.  Stevens  v.  Catlin,  152  III  57. 

2  Pomeroy,  Rights  &  Rem.  (3d  ed.),  7 1  Sutherland  on  Dam..  §  128;  Lee 
§  185;  1  Chitty's  PL  (16th  Am.  ed.)  v.  Gibbons,  14  S.  &  R.  105. 

9,  n.;  Hays  v.  Lasater,  3  Ark.  567;  8Eccleston  v.  Clipsham,  1  Saund. 

Bliss,  Code  PL,  §  63.  153,  n. ;  Alexander  v.  Jacoby,  supra, 

3  Dicey  on  Parties,  Rule  14.  9  Withers  v.  Birchan,  3  B.  &  C.  254; 

4  See  Duncan  v.  Willis,  supra;  1  St.  Louis,  etc.  Ry.  Co.  v.  Carltas,  33 
Eng.  Rul.  Cas.  160,  T61.  111.  189. 

s  Harrison   v.  Barnby,  5  Term  R.       i<>Sorbie     v.   Perk.  12    M.    &    W. 
249;  Hennakir  v.  Turner,  4  B.  &  C.     146;    Wooten  v.  Steffenoni,  id.  134; 
157;  Loomis  v.  Brown,  16  Barb.  328;     Knightly  v.  Watson,  3  Ex.  716. 
Alexander  v.  Jacoby,  supra. 
4 


50  PARTIES    TO    ACTIONS.  [§  27. 

they  are  required  to  join  or  not,  according  to  the  language 
used.1 

"When  a  promise  to  one  partner  was  declared  upon  by  the 
firm  to  be  concerning  the  firm  business,  and  the  correspond- 
ence, which  was  the  evidence  of  the  cause  of  action,  showed  it 
to  relate  to  firm  business,  the  firm  was  allowed  to  recover.2 
And  when  a  carrier  contracted  with  two  to  assist  him  with 
horses  of  which  each  owned  two,  the  cause  of  action  for  work 
and  labor  was  held  several.* 

The  student  will  find  the  rules  as  to  who  are  joint  or  sev- 
eral covenantees  stated  elaborately  in  books  cited  below.4  The 
rules  depend  upon  the  interest  which  the  parties  have  in  the 
cause  of  action,  and  are  affected  by  the  code  provision  that 
the  real  party  in  interest  shall  bring  the  action.5  The  later 
cases  constantly  refer  to  and  rely  upon  these  old  cases,  whether 
the  rules  as  to  ioinder  are  closely  followed,  as  in  the  common- 

iL  ft/ 

law  states,6  or  where  they  are  modified,  as  in  the  code  states,7 
or  in  England,  where  the  reform  may  be  said  to  be  the  .most 
sweeping.8  It  may  be  appropriately  mentioned  here  that  the 
rule  was  the  same  in  actions  ex  contractu  and  ex  delicto:  that 
all  those  whose  legal  interest  is  joint  must,  if  living,  join  in  the 
action.9 

§27,  Interest  and  property  —  Definitions. —  The  interest 
which  one  or  several  per  sons  have  in  things  real^personal  and  chases 
is  the  controlling  element  in  determining  who  shall  be  parties  in 
actions.  The  common  law,  the  equity  rules  and  the  codes  con- 
stantly use  the  word  "interest"  as  of  controlling  influence  as 
to  joinder. 

The  proper  legal  meaning  of  the  term  "interest"  should  be 
understood  in  order  that  the  real  party  in  interest  may  be  rec- 
ognized. 

1  Anderson  v.  Morlider,  1  East,  497.    23  Ohio  St.  358;  I,  B.  &  W.  Ry.  Co. 

2  Garrett  v.  Handley,  4  B.  &  C.  664.    v.  Adamson,  114  Ind.  283. 

*  Smith  v.  Hunt,  2  Chitty,  142.  8In  Hannay  v.  Smurthwaite,  69  JL. 

<  2  Saund.  16,  and  note;  1  Eng.  RuL  T.  R.  (N.  S.)  677  (see  Appendix,  "  A  "), 

Cas.  159.  the   student  will    find    traced   the 

6  Duncan  v.  Willis,  51  Ohio  St.  433.  course  of  reform  in  England.    See 

6  See  1  Eng.  RuL  Cas.  156.  also  editorial  comment  on  same  in 

7  Clark  v.  Cable.  21  Mo.  223.    See  Law  Times,  Aug.  11,  1894,  330. 
argument  in  Alexander  v.  Jacoby,  9  Harris  v.  Swanson,  62  Ala.  299. 


§  27.]  PARTIES'  TO  ACTIONS.  51 

Property  is  to  be  distinguished  from  title,1  or  from  the  land 
or  chattel  or  chose  which  may  be  the  subject  of  property. 
Property  and  interest  are  very  nearly  synonymous.  Property 
is  the  right  or  interest  which  one  has  in  or  to  things.2 

Interest,  several  kinds: 

If  one  person  combines  in  himself  complete  ownership,  i.  e.t 
title,  interest  and  possession,  he  is  said  to  hold  in  severalty.* 

If  several  have  rights  in  or  to  the  thing,  their  titles  and  the 
nature  and  duration  of  their  ownership  determine  the  character 
of  their  interest. 

first,  considered  with  reference  to  their  number  and  their  con- 
nection with  the  matter  involved.  The  sole  and  complete  owner- 
ship may  be  in  one,  when  it  is  called  in  severalty.4  If  several 
persons  have  some  interest,  then  they  hold  either  as  joint  ten- 
ants,5 tenants  in  common,6  or  as  parceners  in  real  estate. 

Second,  with  reference  to  the  nature  of  the  interest. 

(a)  One  person  may  have  the  right  of  possession  while  an- 
other has  the  ultimate  ownership,  in  which  case  the  nature  of 
the  injury  will  determine  which  person  has  sustained  it.7 

(5)  The  legal  title  may  be  in  one  and  the  equitable  owner- 
ship may  be  in  another,  e.  g.,  trustee  and  cestui  que  trust;  and 
in  covenant  under  seal,  the  law  regards  the  holder  of  the  legal 
title  as  the  real  party.  In  an  equitable  suit,  however,  the  pres- 
ence of  all  parties  may  be  necessary  in  order  to  afford  complete 
relief,  in  which  case  both  are  real  parties  in  interest.8 

Having  noticed  the  things  which  controlled  in  framing  the 
rules  of  joining  parties  in  actions  under  the  common  law,  we 
may  properly  notice  two  rules  of  common-law  pleading  as  to 
joinder  and  the  equity  rules,  and  then  we  may  assume  to  have 
a  fair  understanding  of  the  principles  governing  the  subject. 

1  Springfield  Fire  &  M.  Ins.  Co.  v.  6  Non- joinder  of  tenants  in  corn- 
Allen,  43  N.  Y.  387.  mon  must  be  taken  advantage  of  by 

2  Wynehammer  v.  People,  13  N.  Y.  plea   in   abatement.     Sedgnorth  v. 
378;  Easton  v.  B.,  C.  &  M.  Ry.  Co.,  51  Overend,  7  T.  R.  279, 1  Eng.  RuL  Cas. 
N.  H.  504,  12  Am.  R.  147;  Rigney  v.  157. 

Chicago,  102  III  64;  Metropolitan  Ry.  7  The  owner  of  the  freehold  let  for 

Co.  v.  Chicago  W.  D.  Ry.  Co.,  87  III  a  period  cannot  sue  for  a  damage  to 

818.  the  leasehold  or  join  with  the  occu- 

3  2  Cooley's  Black.  (3d  ed.)  *178.  pant.    Penfield  v.  Rich,  1  Wend.  380. 
«  Andrews'  Am,  Law,  1004  et  seq.  s Story,  Eq.  PL, p.  207 ;  Dubs  v.  Egli, 
«Id.  167  III  514. 


52  PARTIES    TO   ACTIONS.  [§  28. 

§  28.  Common-law  and  code  rules  as  to  joinder  contrasted. 

The  codes  provide  that  all  persons  having  an  interest  in  the 
subject-matter  of  an  action  and  in  obtaining  the  relief  de- 
manded may  join.  The  language  is  may,  while  the  other  sec- 
tion is  that  all  whose  interests  are  united  must  join.  There  is 
considerable  conflict  of  decision  in  the  code  states  as  to 
whether  the  first  clause  applied  to  legal  or  only  to  equitable  ac- 
tions; but  there  is  a  misapprehension  on  the  part  of  some 
authors  of  treatises  upon  code  pleading  as  to  the  state  of  the 
common  law  in  regard  to  joinder  of  parties.  Thus,  Professor 
Bliss  says:  "Nor  at  common  law  can  parties  having  only  an 
interest  in  the  subject  of  the  action  and  in  the  remedy  be 
united  as  plaintiffs  unless  that  interest  be  joint" l  Again,  he 
mentions  the  common-law  rule  as  confining  the  union  to  those 
having  a  joint  interest;2  and  further  on  he  says:  "It  shocks 
the  prejudice  of  the  common-law  pleaders  to  speak  of  a  union 
of  plaintiffs  when  there  is  not  a  joint  interest." 3  So,  also,  Pro- 
fessor Pomeroy,  in  his  work  which  is  so  admirable  for  style  as 
well  as  for  the  originality  of  some  of  its  propositions,  states 
that  the  common  law  was  peremptory  in  the  requirement  that 
separate  holders  of  rights  must  sue  alone.4  Again,  "At  com- 
mon law  the  different  holders  of  several  rights  must  sue  sepa- 
rately although  the  rights  were  created  by  a  single  instrument, 
and  although  there  might  be  some  kind  of  a  common  interest."5 
This  view  of  the  common  law  is  entirely  erroneous.  And 
whether  Judge  Comstock  was  right  or  not  in  his  remark  that 
"  The  authors  of  the  code,  in  framing  this  [the  one  we  are  no- 
ticing] and  most  of  its  other  provisions,  appear  to  have  had 
some  remote  knowledge  of  what  the  previous  law  had  been," 6 
it  is  certain  that  the  expounders  just  mentioned  were  entirely 
in  ignorance  of  two  rules  of  the  common  law  as  to  joinder.7 

It  was  early  established  as  a  rule  of  pleading  that  when  by 
an  act  several  persons  sustained  a  common  damage,  though 
their  interests  were  not  joint,  it  might  be  considered  as  a  joint 

1  Code  PL,  §  61.  7The  case  of  Hannay  v.  Smurth- 

2  Id.,  §  73.  waite  is  of  so  much  importance  that 

3  Id.,  §  74.  it  has  been  inserted  at  large  in  the 
4Pomeroy's   Code  Rem.  (3d   ed.),    Appendix.     It  should  be  carefully 

§  184.  studied,  as  summarizing  the  ancient 

8  Id.,  §  199.    Cf.  supra,  §§  25,  26.          and  modern  learning  on  the  subject 
6 17  N.  Y.  604.  of  the  joinder  of  parties. 


§  28.]  PARTIES   TO   ACTIONS.  53 

damage,  and  they  were  allowed  to  join  in  a  suit  ex  contractu 
or  ex  delicto.1  The  cases  cited  are  strikingly  like  the  case  cited 
by  Pomeroy  at  section  202,2  and  illustrations  put  by  Bliss.* 
While  the  rule  of  the  common  law  was  not  so  broad  as  this 
provision  of  the  code  has  in  some  cases  been  construed  to  be,  it 
was  broad  enough  to  allow  a  joinder  in  cases  where  the  plaint- 
iffs had  a  common  interest  in  both  the  subject  of  the  suit  and 
the  damages,  though  such  interest  was  not  joint  or  equal  in 
degree.  In  such  cases  as  supposed  by  Bliss4  there  was  never 
any  trouble  before  the  code,  for  when  several  were  injured  by 
a  nuisance  and  desired  to  prevent  it,  a  court  of  equity  was  the 
appropriate  tribunal.  So  in  the  case  of  different  creditors,  as 
will  fully  appear  when  we  consider  the  equity  rules  of  joinder.5 
In  the  case  of  tenants  in  common,  if  they  desired  lo  prevent  a 
trespass,  and  it  was  of  such  a  nature  that  the  law  would  inter- 
pose, there  was  no  trouble  as  to  joinder.  The  case  of  joinder 
as  to  tenants  in  common  never  presented  any  difficulty,  and  is 
not  at  all  affected  by  the  provision  we  are  discussing. 

The  case  of  Coryton  v.  Lithebye 6  was  a  case  where  several 
distinct  owners  of  separate  mills,  situated  in  the  manor  of 
Calliland,  brought  an  action  against  Coryton  because  he  did 
not  grind  his  corn  at  either  mill,  when  by  the  custom,  based 
upon  a  prescription,  all  the  inhabitants  were  bound  to  grind 
at  one  of  the  mills  in  the  manor.  The  defendant  objected  be- 
cause the  ownership  of  the  mills  was  entirely  distinct  and 
separate,  and  neither  could  tell  his  damage;  yet  they  were  al- 
lowed to  join  because  the  damage  was  joint.  Not  that  they 
were  joint  owners  of  the  damage,  but  they  were  both  inter- 
ested in  the  subject  and  the  relief  demanded.  So  in  Weller 
v.  Baker?  twelve  dippers  at  Tunbridge  Wells,  who  obtained 
the  right  to  dip  by  appointment,  and  had  no  joint  interest  in 
the  earnings,  brought  a  joint  action  against  one  not  appointed 
for  disturbing  them  in  their  employment.  The  court  held  that, 
though  they  were  each  severally  entitled  to  their  own  several 
earnings,  they  were  jointly  concerned  in  point  of  interest,  and 

1  Dicey  on  Parties  (3d  Am.  ed.).  2Loomis  v.  Brown,  16  Barb.  335. 

rule  80,  p.  401;  Coryton  v.  Lithebye,  3  Code  PL,  §  73. 

2  Saund.  112-117;  Weller  v.  Baker,  2  «  Code  PL,  §  73. 

Wils. '423;    Hoggens    v.   Gordon,    3  6  Post,  §54. 

Q.  B.  466;  Vaux  v.  Steward,  2  Leon.  6  2  Saund.  112-117. 

12.  7  2  Wils.  414. 


54:  PARTIES   TO   ACTIONS.  [§  29. 

it  was  a  hurt  done  to  them  all.  Again,  in  Vaux  v.  Steward? 
an  action  of  aszumpsit  brought  by  several  separate  owners  of 
cattle  which  had  been  distrained,  the  defendant  had  promised 
to  procure  back  the  cattle  by  a  time  certain  but  had  not;  it 
was  held  that  though  the  interest  of  each  was  several,  and  the 
thing  to  be  done  several,  yet  the  contract  and  consideration 
were  joint  and  the  parties  could  join. 

These  cases  cover  the  proposition  that  there  might  be  a  join- 
der in  actions  at  law  by  parties  who  were  severally  interested 
in  the  subject  of  the  suit,  provided  they  had  a  common  inter- 
est in  the  relief  sought.  The  cases  usually  cited  by  code  writers,, 
except  such  as  are  based  upon  causes  of  action  which  would 
have  been  called  equitable,  do  not  extend  the  rule.  Those 
which  extend  the  rule  are  cases  which  but  for  the  code  would 
have  been  deemed  equitable  actions.2 

The  correct  rule  is  —  as  stated  by  Maxwell  in  his  work  on 
Code  Pleading  —  that  a  joint  action  cannot  be  maintained  upon 
several  distinct  and  separate  matters,  even  though  they  arise 
out  of  the  same  transaction,  unless  the  plaintiffs  have  a  com- 
mon interest  in  the  question  at  issue.3 

§  29.  Equity  rules  under  the  common  law  and  the  codes. 
The  limitations  set  upon  the  privilege  of  joining  as  plaintiffs 
in  equitable  actions  will  make  still  clearer  the  common-law 
rule  above  referred  to,  and  the  provision  of  the  code  permit- 
ting joinder.  The  case  most  commonly  referred  to  is  fellows 
v.  fellows*  and  Judge  Sutherland  approved  the  rule  as  to 
joinder  in  equity  recognized  by  the  chancellor  in  BrinkerJwff 
v.  Brown?  thus:  "The  forms  of  proceedings  in  chancery,  or 
the  power  of  the  court  to  mold  its  decrees  so  as  to  suit  the 
various  equities  of  the  case  established  by  the  proof,  enable 
it  advantageously  to  settle  and  adjust  in  a  single  suit  rights 
and  interests  which,  according  to  the  rules  of  pleading  in  the 
courts  of  common  law,  would  necessarily  result  in  various 
issues  incapable  of  being  tried  in  a  single  cause  and  disposed 

i  Stated,  2  Saund.  117c.    The  above  \  8  Maxwell's  Code  PL  30. 

cases  are  referred  to  in  Hannay  v.  4  4  Cow.  682  (1825). 

Smurthwaite,  post,  Appendix.  56  John.   Ch.   139.     See  Boyd  v. 

2Loomis  v.  Brown,  16  Barb.  325;  Hoyt,  5  Paige  Ch.  65,  Lawy.  Ed.,  vol.  3r 

Rutledge  v.  Corbin,  10  Ohio  St.  478;  p.  629. 
School  District  v.  Edwards,  46  Wis. 
150. 


§  29.]  PARTIES   TO   ACTIONS.  55 

of  in  a  single  judgment.  But  notwithstanding  this  disposition 
of  a  court  of  equity  to  prevent  the  multiplication  of  suits,  it 
will  not  permit  several  plaintiffs  to  demand  by  one  bill  sev- 
eral matters  perfectly  distinct  and  unconnected  against  one 
defendant,  nor  one  plaintiff  to  demand  several  matters  of  dif- 
ferent natures  against  several  defendants;  "  and  he  affirms  the 
reason  of  the  rule  "  to  prevent  confusion  and  to  preserve  some 
analogy  to  the  comparative  simplicity  of  a  declaration  at 
common  law."  And  he  affirms  the  ancient  rule  that  uncon- 
nected parties  may  be  joined  in  a  suit  where  there  is  one 
common  interest  among  them  all,  centering  in  and  upon  the 
issue  in  the  cause.  It  is  not  sufficient  that  the  parties  have  a 
common  interest  in  some  one  or  more  items;  they  must  have  a 
common  interest,  not  in  a  particular  item  or  isolated  charge 
in  the  bill,  but  in  the  main  point  in  the  cause. 

These  decisions  are  all  based  upon  several  ancient  decisions 
of  the  English  courts.1  The  principles  have  not  been  changed 
or  innovated  upon.  The  only  question  has  been  as  to  their 
application. 

These  principles  which  we  have  just  noticed  were  reaffirmed 
by  the  court  of  appeals  of  New  York  in  a  case  arising  under 
the  code.2 

We  have  seen  that  several  separate  owners  might  join  at 
law  in  a  suit  to  recover  for  the  violation  of  a  common  right 
which  did  them  a  common  damage,  although  it  could  not  be 
ascertained  what  the  damage  to  each  might  be;  and  in  the 
case  cited  Lord  Hale  gave  as  one  of  the  reasons  that  there 
might  not  be  a  double  recovery  of  damages.3  So,  in  equity, 
several  separate  owners  of  separate  properties  may  join  to 
abate  a  common  nuisance.4  The  student  should  not  fail  to 
observe  that  in  all  these  chancery  cases  there  were  equitable 
grounds  for  relief;  that  is,  there  was  the  equitable  right  to  an 
accounting  for  a  viofated  trust,  or  the  appeal  to  equity  to 
enjoin  a  nuisance  or  to  prevent  a  trespass  which  would  con- 
stitute an  irreparable  damage.  None  of  them  were  suits  in- 

iWard  v.  Duke  of  Northumber-       'Coryton  v.  Lithebye,  SSaund.  112, 
land,  2  Anstr.  469;  Mayor  of  York  v.    117. 
Pilkington,  2  Atk.  302.  4Peck  v.  Elder,  3  Sandf.  Ch.  126; 

2  N.  Y.  &  N.  H.  R  Co.  v.  Schuyler,  Reed  v.  Gifford,  Hopkins'  Ch.  416. 
17  N.  Y.  592.  See  also  Murray  v.  Hay,  1  Barb.  Ch. 

59;  Wood  v.  Perry,  1  Barb.  114. 


56  PARTIES   TO    ACTIONS.  [§§  30,  31. 

volving  the  mere  recovery  of  damages  for  a  past  injury  uncon- 
nected with  a  trust  or  fiduciary  relation,  nor  were  any  of 
them,  for  the  trial  of  a  title.1 

The  remarks  of  the  editor  of  the  London  Law  Times  in  re- 
lation to  the  suit  of  Hannay  v.  Smurthivaite*  will  apply  to  the 
question  of  joinder  as  we  have  discussed  it.  "  The  moral  of 
the  case,"  he  says,  "  is  that,  wide  as  are  the  powers  which  liti- 
gants now  possess,  a  writ  of  summons  is  not  like  an  omnibus, 
into  which  any  one  can  get  as  it  goes  along." 

No  intention  being  evinced  to  destroy  the  integrity  of  the 
cause  of  action  or  to  abrogate  the  principles  which  obtained 
at  common  law  as  to  joinder,  no  one  can  properly  construe 
and  apply  the  provisions  of  codes  without  an  understanding  of 
the  common-law  rules.  . 

§30.  All  who  are  united  in  interest  must  join. —  In  ref- 
erence to  the  second  of  the  code  provisions,  namely,  that  all 
parties  who  are  united  in  interest  must  be  joined,  all  agree 
that  this  is  merely  a  re-enactment  of  the  common-law  rule.3 

§  31.  A  necessary  plaintiff  may  be  joined  against  his  pro- 
test.—  It  is  claimed  that  the  third  provision,  namely,  that  if 
the  consent  of  any  one  who  should  have  been  joined  as  plaintiff 
cannot  be  obtained  he  may  be  made  defendant,  the  reason 
thereof  being  stated,  has  made  a  great  change  and  vast  im- 
provement over  the  common-law  rules  because  of  the  lack  of 
any  remedy  at  common  law  in  such  cases.  Thus  Mr.  Bliss 
says  that  unless  the  common-law  rule  is  modified  by  this  sec- 
tion the  rule  remains  as  at  law.  He  lays  down  the  proposition 
that  if  one  having  a  joint  right  refused  to  prosecute,  then  there 
was  no  remedy  at  law.4  Again,  he  says  there  is  no  way  by 
which  a  party  to  a  joint  right  can  enforce  it,  either  to  the  en- 
tirety or  to  the  extent  of  his  interest,  without  the  co-operation 
of  all  survivors  who  are  joined  with  him  in  interest.5  So,  also^ 
Professor  Pomeroy  says  the  joint  right  being  conceived  of  as 
a  single  entity,  although  residing  in  two  or  more  persons,  the 
judgment  must  establish  or  defeat  it  as  a  whole.  The  notion 
of  severing  it  and  establishing  a  part  in  favor  of  certain  plaint- 
iffs and  defeating  a  part  could  not  be  entertained.  Again,  that 

1  See  Worthington  v.  Waring,  157        8  Duncan  v.  Willis,  51  Ohio  St.  433. 
Mass.  421,  20  L.  R.  A.  342.  «  Bliss,  Code  PI.  (2d  ed.),  §  62. 

2  69  L.  T.  R.  (N.  S.)  677.  »Id. 


§  31.]  PARTIES   TO   ACTIONS.  57 

all  persons  jointly  interested  must  unite  as  plaintiffs,  and  no 
one  of  them  could  be  permitted  to  sue  alone.1 

These  expressions  are  cited  to  show  that  there  is  an  evident 
misconception  resulting  from  the  fact  that  these  learned  au- 
thors were  not  familiar  with  several  rules  of  the  common  law 
relating  to  joinder,  while  their  opinions  have  in  some  jurisdic- 
tions passed  as  law.2 

It  is  a  general  rule  of  common-law  pleading  that  should  one 
who  was  a  necessary  party  plaintiff  refuse  to  bring  an  action, 
the  beneficial  parties  have  a  right  to  use  his  name  without  his 
consent  and  against  his  protest  on  giving  indemnity.  This 
was  a  familiar  rule  in  the  case  of  the  assignment  of  choses  in 
action.3  So  in  an  equity  case  it  was  held  that  there  might  be 
cases  where  a  party  was  a  necessary  party  plaintiff,  in  which 
case  his  name  could  be  used  without  consent.4 

The  rule  is  expressly  affirmed  in  many  cases  at  law,  in  vari- 
ous forms  of  action,  that,  where  one  necessary  joint  plaintiff 
refuses  to  sue,  his  co-obligee  or  promisee  might  use  his  name 
against  his  consent.5 

In  cases  at  law  the  rule  was  constantly  applied.  Thus,  in 
Sweigart,  v.  Berk*  Tilghman,  J.,  says:  "The  action  (which 
was  debt  upon  a  bond)  may  be  brought  on  the  penalty  of  the 
bond  in  the  name  of  all  the  obligees  and  the  judgment  entered 
in  such  manner  as  to  secure  the  separate  interests  of  each.  The 
action  may  be  supported,  although  some  of  the  obligees  have 
received  their  shares,  because  the  bond  is  forfeited  unless  they 
have  all  been  paid.  It  was  objected  that  those  who  had  been 
paid  might  refuse  to  join  in  the  action  or  might  release  the 
obligor;  but  the  court  would  permit  those  who  were  not  paid 
to  make  use  of  the  names  of  the  other  obligees  against  their 
consent;  neither  would  their  release  be  suffered  to  be  set  up 

1  Code  Rem.,  §  193.  son,  62  Ala.  299  (action  for  statutory 

2  Bank  of  Central  City  v.  Hummel,  penalty);  Darling  v.  Simpson,  15  Ma 
14   Colo.    260-75,  quotes    Pomeroy's  175  (assumpsit);  Hays  v.  Lasater,  3 
€ode  PL,  §  199.  Ark.  567  (covenant  on  bond);  Wright 

3  Mountstephen  v.  Brooke,  1  Chitty,  v.  McLemore.  10  Yerg.  235  (assumpsit 
390;  Winslow  v.  Newland,  45  III  145;  on  note);  Gray  v.  Wilson,  Meigs,  394 
Sumner  v.  Sleeth,  87  111.  500.  (assumpsit);  Sweigart  v.  Berk,  8  S. 

<  Hargrave  v.  Lewis,  6  Ga,  207.  &  R.  308  (debt  on  bond). 

»  Jamison  v.  Colburn,  1  Stew.  &  P.        6  8  S.  &  R.  30a 
253  (writ  of  error);  Harris  v.  Swan- 


58  PARTIES  TO  ACTIONS.  [§  31. 

in  bar  of  the  action.  It  may  be  resembled  to  the  case  of  an 
assigned  chose  in  action  where  the  action  was  brought  irrthe 
name  of  the  assignor  for  the  use  of  the  assignee ;  there  the  re- 
lease of  the  assignor  would  not  be  regarded.  A  release  in  such 
a  case  would  be  collusion." 

In  Harris  v.  Swanson l  the  court  said :  "  All  courts  have  an 
inherent  power  ...  to  protect  the  rights,  and  interests 
of  those  who  have  "beneficial  interests  in  the  subject-matter  of 
suits." 

In  Gray  v.  Wilson?  which  was  assumpsit  for  money  belong- 
ing to  two  jointly,  one  accepted  payment  for  his  share  and  the 
other  brought  suit  in  the  name  of  both.  After  suit  the  one  who 
had  been  paid  compromised  the  suit  and  caused  it  to  be  dis- 
missed ;  the  dismissal  was  set  aside,  the  court  saying  that  the 
party  who  had  been  paid  had  no  right  to  compromise  the  suit 
and  dismiss  it  without  the  consent  of  his  co-plaintiff.  If  he 
had  received  satisfaction  for  his  part  of  the  amount  claimed, 
still  the  other  plaintiffs  had  the  right  to  prosecute  the  suit  in 
the  name  of  all  three  for  their  use. 

In  Wright  v.  McLemore?  another  Tennessee  case,  it  was  said 
that  the  co-plaintiff  refusing  might  have  released  his  interest  in 
the  note,  but  he  could  not  be  heard  to  say  that  he  would  not 
permit  his  co-obligee  to  use  his  name  in  connection  with  his 
own  to  enforce  the  contract  so  far  as  he  was  interested  therein ; 
otherwise,  in  all  cases  of  contract  joint  as  to  the  payees,  the 
obstinacy  or  fraud  of  one  might  defeat  the  remedy  of  the  other. 
The  case  also  was  one  where  one  of  the  parties  stood  in  the 
position  of  the  assignee  of  the  chose. 

These  cases  show  the  error  of  the  notion  that  the  section  of 
the  codes  allowing  parties  who  refuse  to  join  to  be  made  par- 
ties defendant  was  necessary  by  reason  of  the  technicality  of 
the  common  law. 

There  is  no  room  to  speculate  as  to  the  intention  of  the  com- 
mittee who  prepared  the  code,  for  under  section  99  of  the  orig- 
inal draft  of  the  code  the  committee  have  placed  this  note: 
"  Conformable  to  the  rule  prescribed  by  the  supreme  court  of 
the  United  States  for  suits  in  equity;"  and  while  the  language 
of  the  section  is  broad  enough  to  apply  to  any  form  of  action,  it 
would  be  absurd  to  hold  it  intended  to  apply  to  that  to  which 

162  Ala.  299.  2Meigs,394  "lOYerg.  235. 


§  32.]  PARTIES   TO   ACTIONS.  5$ 

it  was  essentially  unnecessary  and  inapplicable.  The  court  rule 
referred  to  was  merely  a  re-enactment  of  what  was  already  the 
law  in  most  equity  cases.1 

The  position  sustained  by  the  authorities  just  cited  does  not 
in  any  measure  contravene  the  rule  of  law  that  a  release  by 
one  joint  obligee  is  a  bar  to  an  action  by  any  or  all.2  One 
obligee  might  receive  the  payment  for  the  debt  and  execute 
a  release,  and  this  would,  whether  at  common  law  or  under 
the  code,  destroy  the  cause  of  action  and  be  the  basis  of  a  plea 
in  bar.3  Receiving  payment  by  one  joint  promisee  or  obligee 
of  his  share  of  the  debt  before  suit  brought  had  the  effect  of 
destroying  the  joint  nature  of  the  contract  as  to  him.  There 
was  no  rule  of  law  against  all  of  the  parties  agreeing  to  a  sev- 
erance of  what  was  originally  a  joint  obligation ;  and  in  case 
of  a  payment  of  one  share  before  suit  brought,  and  suit  upon 
the  obligation  by  the  other  obligees  without  joining  the  one 
who  had  received  payment,  the  consent  of  all  to  the  severance 
was  implied  from  the  acts  of  the  parties,4  but  after  suit  one 
could  not  compromise  the  suit  and  dismiss  it  without  the  con- 
sent of  the  other.5 

It  is  quite  apparent  that  the  two  writers  on  Code  Pleading 
to  whose  language  reference  has  been  made  have  overlooked 
these  provisions  of  the  common  law,  and  that  all  their  remarks 
are  based  upon  an  erroneous  assumption  of  premises.  Mr.  Pom- 
eroy  remarks  that  some  of  the  judges  hold  that  no  change  has 
been  made  in  the  common-law  rules  as  to  the  joinder  of  plaint- 
iffs.6 Professor  Bliss  is  laboring  under  the  same  misapprehen- 
sion. It  is  possible  that  the  opinion  of  one  reacted  on  the 
opinion  of  the  other,  and  their  opinions  have  had  some  weight 
with  the  judges  of  different  courts. 

§  32.  Joinder  of  parties. —  "  It  is  a  rule  as  old  as  the  science 
of  pleading  itself,  that  in  declaring  in  actions  on  contracts  there 

*See  Andrews  v.  Malpermera,  7  v.  Walsh,  2  Mass.  405;  Baker  v.  Jew- 

Cal.  330.  ell,  6  Mass.  460;  Beach  v.  Hotchkiss, 

2  C.  &  N.  W.  R,  Co.  v.  Nichols,  57  2  Conn.  697. 

111.   467;    Wright  v.   McLemore,   10  *  Gray  v.  Wilson,  Meigs,  394. 

Yerg.  235;  Austin  v.  Hall,  13  Johns.  6Code  PI.,  §  204,  citing  Rainey  r. 

286;  Hall  v.  Gray,  54  Ma  230.  Smizer,  28  Mo.  310;  Voorhis  v.  Child, 

s  Wright  v.  McLemore,  10  Yerg.  17N.Y.354;  Hairecht  v.  Pemberton, 

235;  Hall  v.  Gray,  54  Me.  230.  4  Sandf.  657;  Van  Horn  v.  Emerson, 

*  Stedman  v.  Shelton,  1  Ala.  86;  Hoi-  13  Barb.  526. 
land  v.  Weld,  4  GreenL  455;  Austin 


60  PARTIES    TO    ACTIONS.  [§§  33,  34. 

must  not  be  too  few  or  too  many  plaintiffs.  If  there  be  it  is 
fatal  to  a  recovery." l  Having  examined  the  principles  which 
control  and  which  obtained  in  determining  the  question  of  the 
proper  joinder  of  parties  in  actions,  it  remains  to  consider 
somewhat  the  application  of  these  principles  to  different  in- 
stances, bearing  in  mind  that  we  are  not  here  endeavoring  to 
particularize  to  such  a  degree  as  to  enumerate  every  special 
instance. 

§  33,  Non-joinder  of  plaintiffs  in  actions  ex  contractu. — 
In  actions  ex  contractu,  where  several  are  jointly  interested,  as 
we  have  seen,  the  cause  of  action  is  wholly  in  them  all,  and  if 
there  is  a  non-joinder  of  one  who  should  be  a  party  plaintiff 
in  an  action  in  form,  ex  contractu,  the  consequences  at  common 
law  were  serious,  for  the  defendant,  if  it  appeared  on  the  face 
of  the  pleading,  might  demur,2  or  if  the  action  were  upon  A 
deed  he  could  crave  oyer  of  the  deed  and  then  demur;3  or  he 
could  plead  the  non-joinder  in  abatement ; 4  or  it  could  be  taken 
advantage  of  under  the  general  issue;5  or  if  the  record  and 
evidence  made  the  non-joinder  appear  to  the  court,  the  defend- 
ant might  after  verdict  move  in  arrest  of  judgment,6  or  the 
same  might  be  taken  advantage  of  upon  a  writ  of  error.7 

As  we  have  seen,  joint  tenants  in  a  contract  relating  to  their 
joint  estate  or  to  an  entire  benefit  must  join,  but  mere  nominal 
or  ostensible  partners  having  no  interest,  and  dormant  partners 
having  no  interest,  need  not  be  joined.  As  to  tenants  in  com- 
mon, the  general  rule  is  that  they  cannot  join  or  be  joined  in  real 
or  mixed  actions  unless  in  cases  for  the  recovery  of  an  entire 
indivisible  thing.8 

§  34.  Mis  joinder  of  plaintiffs  ex  contractn. —  As  to  the 
misjoinder  of  plaintiffs  in  actions  ex  contractu,  the  consequences 
are  equally  serious,  for  misjoinder  might  be  taken  advantage 
of  in  the  same  manner.9 

1  Starrett  v.  Gault,  165  HI  101.  *  Ehle  v.  Perdy,  6  Wend  629. 

2  Eccleston  v.  Clipsham,  1  Saund.  6  Dinet  v.  Reilley,  2  I1L  App.  316. 
153,  n.;  Cabell  v.  Vaughan,  1  Saund.  7Ehle  v.  Perdy,  supra;   Dinet  v. 
291,  n. ;  Hicks  v.  Braunton,  21  Ark.  Reilley,  supra;  I  Saund.  291 ;  Dement 
189;  Pitkin  v.  Roley,  43  N.  H.  139.  v.  Rokker,  126  111.  174.    See  also  Dock- 
See  Baker  v.  Jewell,  6  Mass.  46,  4  Am.  wray  v.  Dickenson,  1  Eng.  Rul.  Cases, 
Dec.  162.  156. 

»  1  Chitty's  PL  13,  14.  8  Malcolm  v.  Rogers,  5  Cowen,  188, 

4  Hicks  v.  Braunton,  supra;  Pitkin    15  Am.  Dec.  464;  1  Chitty's  PI.  12. 
v.  Roley,  supra.  9 1  Burr.  Pr.  64;  Cabell  v.  Vaughan, 


§§  35,  36.]  PARTIES   TO   ACTIONS.  61 

§  35.  Non-joinder  of  defendants  ex  contractn As  to  the 

joinder  of  defendants  in  actions  ex  contractu,  if  the  contract 
or  interest  was  joint,  all  should  properly  be  joined ;  if  several, 
each  should  be  sued  alone;  or  if  the  interest  or  contract  was 
joint  and  several,  the  plaintiff  may  elect,  but  had  not  the 
right  to  sue  an  intermediate  number.1  But  this  last  proposi- 
tion must  be  taken  in  a  restricted  sense.  The  only  way  of 
taking  advantage  of  the  fact  that  a  plaintiff  was  suing  the  in- 
termediate number  was  by  pleading  in  abatement,  unless  that 
fact  appeared  upon  the  record,2  in  analogy  to  the  case  of  a  non- 
joinder. 

In  case  of  the  non-joinder  of  a  defendant  who  should  properly 
have  been  joined,  the  other  defendants  should  take  advantage 
of  it  by  a  plea  in  abatement,3  unless  the  defect  appears  upon 
the  face  of  the  declaration,  in  which  case  advantage  may  be 
taken  of  it  at  any  time  even  upon  error.4 

§36.  Misjoinder  of  defendants  ex  contractn. —  In  case  of 
the  joinder  of  too  many  defendants,  this  defect  may  be  taken 
advantage  of  at  any  time  by  plea  in  abatement  or  demurrer, 
motion  for  a  nonsuit,5  motion  in  arrest,  or  on  error.6 

2  Saund.  16a;  Hennies  v.  Vogel,  66  the  case  of  Rice  v.  Shute,  and  espe- 

111.  401;  Fogg  v.  Virgin,  19  Me.  552,  cially  the  notes  to  the  latter  case  in 

36  Am.  Dec.  757.   See  also  1  Eng.  Rul.  2  Sm.  Ld.  Cas.  1405-1416.  no  reason 

Cases,  166  and  note.   Under  the  New  is  found  for  changing  the  statement 

York  practice,  if  the  defect  appears  of  the  text.    The  decision  referred 

of  record  a  failure  to  object  is  a  to  is  Sinsheimer  v.  Skinner  Manuf. 

waiver.    Kelley  v.  Jay,  79  Hun,  535.  Co.,  54  111.  App.  151.    See  also  Dam- 

1 1  Chitty's  PL  143.  ron  v.  Sweetser,  16  111.  App.  342,  sus- 

2  1  Saund.  291/.  taining  the  text."    The  case  having 

8  Rice    v.    Shute,  2   Burr.   261;   1  been  taken  to  the  supreme  court, 

Smith's  L.  C.    1405;    Backentors  v.  that  tribunal  reversed  the  decision  of 

Stahler,  Adin'r,   33   Pa.   St.   251,  75  the  appellate  court  and  ruled  in  favor 

Am.  Dec.  592.  of  the  proposition  in  the  text,  citing 

4Swigart  v.  Weare,  37  111.  App.  259;  it    Sinsheimer  v.  Skinner  Mfg.  Co., 

Cummings  v.  People,  50  111.  132.  165  111.  116;  Thompson  v.  Strain,  16 

As  to  this  last  proposition  there  is  111.  369.     Of.  1  Eng.  Rule  Cas.  173, 

decided  contrariety  of  opinion.    In  American  note. 

the  first  edition  of  this  book  the  ed-  The  cautious  practitioner  should  re- 

itor  was  obliged  to  insert  the  follow-  examine  the  question  in  the  light  of 

ing  note:  "  Since  section  23  was  ster-  the  decisions  in  his  own  jurisdiction. 

eotyped  I  have  seen  the  proof-sheets  6  1  Burr.  Pr.  169;  Hennies  v.  Vogel, 

of  a  decision  of  the  Illinois  appellate  66  III  401;  Manahan  v.  Gibbons,  19 

court  contrary  to  the  text;  but  after  Johns.  109. 

carefully  examining  that  case  and  6 1  Chitty's  PL  44, 


•62  PARTIES   TO    ACTIONS.  [§§  37,  38. 

§  37.  Non-joinder  of  plaintiffs  in  cases  ex  delicto. —  Ordina- 
rily, where  the  injury  is  to  property  or  property  rights  and 
the  interest  is  joint,  those  jointly  owning  should  be  joined  as 
plaintiffs; l  but  if  the  interest  is  several  and  the  damage  merely 
joint,  the  plaintiffs  may  join  or  sever,  as  we  have  seen.2 

Tenants  in  common  are  obliged  to  join  in  trespass  quare 
-clausum.3  The  consequences,  however,  of  a  non-joinder  were 
never  serious ;  for  while  the  defendant  might  compel  the  plaint- 
iff to  join  all  who  were  joint  in  interest,  he  could  only  do  so 
by  a  plea  in  abatement;  and  it  is  frequently  held  that  this  is 
so  whether  the  non-joinder  is  apparent  upon  the  face  of  the 
declaration  or  not.4  But  upon  this  point  it  seems  that  if  the 
defect  appears  on  the  face  of  the  declaration  there  should  be 
no  reason  for  compelling  the  defendant  to  plead  a  fact  which 
already  appears  by  the  pleading  of  the  opposite  party.5 

If  the  action  be  one  properly  and  essentially  in  tort,  the 
fact  that  all  who  might  sue  were  not  joined  is  of  no  conse- 
quence; but  if  the  action,  though  in  form  ex  delicto,  neces- 
sarily involves  as  an  element  of  the  cause  of  action  the  breach 
of  a  contract,  the  same  advantage  may  be  taken  as  if  the  ac- 
tion were  in  form,  ex  contractu; 6  or  the  defendant  may  give  in 
evidence  the  non-joinder  and  ask  for  an  apportionment  of  the 
damages,7  unless  those  interested  as  plaintiffs  are  joint  owners, 
in  which  case  there  can  be  no  apportionment.8  An  action  for 
a  penalty,  though  in  form  an  action  for  debt,  is  in  its  essence 
an  action  ex  delicto,  but  in  such  cases  the  provision  of  the  stat- 
ute must  be  strictly  complied  with,  and  this  may  require  a  devi- 
ation from'  the  ordinary  rules  as  to  joinder.9 

§38.  Misjoinder  of  plaintiffs  ex  delicto. —  The  rule  as  to 
the  consequences  of  a  misjoinder  of  plaintiffs  in  actions  ex 
delicto,  and  also  as  to  the  manner  of  taking  advantage  of  the 

1  Coryton  v.  Lithebye,  2  Saund.  113-       6 1  Chitty,  66. 

117,  C.,  R.  L  &  P.  Ry.  Co.  v.  Todd,  91  ?  Zabriskie  v.  Smith,  13  N.  Y.  322- 

111.  70.  337,  64  Am.  Dec.  551;   Whitney  v. 

2  Edwards  v.  Hill,  11  111.  22.  Stark,  8  Cal.  514,  68  Am.  Dec.  360. 

3  3  Cooley's  Black.  194.  8  id. 

«1  Chitty's  PL  66.  9  Edwards  v.  Hill,  11  111.  22;  Has- 

5  Bell  v.  Lyman,  1  T.  B.  Mon.  39, 15    cott  v.  Alcott,  13  Ohio  St.  210. 

Am.  Dec.  83;  Cabell  v.  Vaughan,  1 

.Saund.  291. 


§§  39,  40.]  PARTIES   TO   ACTIONS.  63 

misjoinder,  is  the  same  as  that  just  stated  as  applying  to  ac- 
tions ex  contractu.1 
§  39.  Non-joinder  of  defendants  ex  delicto As  to  who 

should  be  defendants  in  actions  ex  delicto,  it  may  be  observed 
that  in  general  there  cannot  be  such  a  thing  as  a  joint  tort, 
for  torts  are  in  general  in  their  nature  several.2  But  where 
many  persons  are  concerned  in  the  commission  of  a  tort,  the 
plaintiff  ma}7  ordinarily  sue  as  many  or  as  few  as  he  chooses, 
and  no  advantage  can  be  taken  of  it.  There  are,  however,  cases 
where  the  action  is  based  upon  contract,  and  in  such  cases  the 
same  rules  as  to  non-joinder  apply  as  in  actions  ex  contractu? 
So  also  joint  owners  of  realty  must  be  joined  as  defendants 
in  cases  of  tort  by  them,  or  they  may  plead  the  non-joinder  in 
abatement.4 

§  40.  Several  liabilities  —  Several  judgments  —  One  satis- 
faction—  Election. —  There  is  not  an  entire  harmony  in  the 
various  states  as  to  the  right  of  a  plaintiff  to  pursue  separately 
the  several  tort-feasors  who  participated  in  the  commission  of 
a  tort. 

There  are  cases  which  hold  that  the  recovery  of  a  judgment 
against  one  is  a  bar  to  a  further  proceeding  against  the  other.5 
Another  class  of  cases  decide  that  the  recovery  may  be  had 
against  all,  while  an  execution  issued  on  any  one  constitutes  an 
election  to  proceed  on  that  judgment  alone.  The  weight  of 
American  authorities,  however,  allows  nothing  short  of  an 
actual  satisfaction  to  bar  further  proceedings.6 

The  plaintiff  has  the  right  to  elect  which  one  of  several 
judgments  he  will  collect;  and  one  of  the  several  defendants 
by  paying  the  money  into  court  cannot  bar  his  right  to  pursue 
the  defendant  he  chooses.7  But  a  release  given  to  one  puts  an 
end  to  further  right  of  election.8 

i  Murphy  v.  Orr,  32  IlL  498;  K  T.  «  Petticolas  v.  City  of  Richmond,  95 

&  M.  Life  Co.  v.  Gravett,49  IlL  App.  Va.  456. 

254.  e  Cleveland  v.  City  of  Bangor,  87 

2 1  Chitty's  PL  86.  Me.  259 ;  Love  joy  v.  Murray,  3  Wall.  1. 

3 1  Saund.  291/;  Wright  v.  Geer,  6  7  Livingston  v.  Bishop,  1  John.  290. 

Vt  151;  Rice  v.  Shute,  2  Burr.  261;  See  Cooley  on  Torts,  *140  et  seq. 

1  Smith's  L.  C.  1413,  note;  Hughes,  8  Duf resne  v.  Hutchinson,  3 Taunt 

Tech.  Law,  170.  117. 

<  Mitchell  v.  Tarbutt,  5  Tenn.  649. 


64  PARTIES   TO    ACTIONS.  [§§  41,  42. 

§  41.  Misjoinder  of  defendants  ex  delicto. —  As  to  the  mis- 
joinder  of  defendants  in  actions  ex  delicto,  if  several  be  joined 
in  a  tort,  and  the  tort  described  in  the  declaration  is  such  as 
could  be  committed  by  but  one,  the  defendant  may  demur,  but 
in  such  case  the  plaintiff  would  have  a  right  to  elect  to  pursue 
one;  and  where,  in  the  case  just  mentioned,  the  action  is  based 
upon  contract,  there  a  misjoinder  would  be  as  serious  as  it 
would  be  in  cases  upon  a  contract.  The  codes  have  not  changed 
the  rules  as  to  the  joinder  of  parties  in  actions  ex  delicto.1 

§  42.  Statutes  of  amendments  remove  ancient  dangers.— 
Since  the  passage  of  the  various  statutes  of  amendments  a 
mistake  in  joining  an  improper  party,  or  failing  to  join  a 
necessary  party,  is  not  attended  with  the  same  fatal  conse- 
quences as  under  the  ancient  common  law,2  but  it  is  usual 
in  all  the  states  to  allow  liberal  amendments  in  matters  of 
form  or  substance,  substituting  the  name  of  the  party  legally 
interested  for  that  of  a  party  beneficially  interested,  adding 
new  parties,  dismissing  proper  parties,  changing  the  form  of 
action,  or  introducing  a  necessary  element  into  a  count.  The 
Illinois  statute  is  a  fair  example,  and  the  cases  will  illustrate 
the  application.3  The  statute  of  amendments  is  not  a  statute 
of  substitution,  and  care  must  be  exercised  lest  by  a  change  of 
cause  or  parties  the  suit  be  entirely  changed.4 

An  illustration  of  this  is  given  in  a  Rhode  Island  case.  The 
law  is  that  when  two  or  more  persons  sue  in  ejectment  as  co- 
tenants,  and  it  appears  that  one  has  no  interest  in  the  property, 
the  defendant  has  judgment.  A  statute  allowing  joint  tenants, 
coparceners  and  tenants  in  common  to  sever  or  join  was  held 
not  to  change  the  common-law  rule;  but  the  statute  of  amend- 
ment, providing  that  no  action  should  be  defeated  by  reason  of 
misjoinder,  etc.,  and  allowing  the  names  of  parties  to  be  stricken 
out,  was  held  broad  enough  to  save  such  an  action.5 

1  Maxwell's  Code  PL  *35;  Hinkle  111.  215;  Cogshall  v.  Beasley,  76  111. 
v.  Davenport,  38  Iowa,  355;  Zabris-  445;  Douglas  v.  Newman,  5  111.  App. 
kie  v.  Smith,  13  N.  Y.  322,  64  Am,  518;  U.  S.  Ins.  Co.  v.  Ludwig,  108  III 
Dec.  551;  Lawson's  Rights  &  Rem.,  514;  Litchfield  Coal  Co.  v.  Taylor,  81 
§3435.  Ill  590;   Ranson  v.  Henderson,  114 

2  The  student  should  read  in  this  111.  528.    See  Appendix,  note  33. 
connection,  Weed  v.  S.  &  S.  Ry.  Co.,  4  See  Appendix,  note  33. 

19  Wend.  534  (1835).  »  Waterman  v.  Andrews,  14  R.  L 

3  Dickson  v.  C.,  B.  &  Q.  Ry.  Co.,  81    589. 


CHAPTER  III. 


SPECIFIC  RULES  AS  TO  PARTIES. 

§43.  Specific  rules  for  selecting  parties. —  The  general 
principles  and  rules  heretofore  given  will  in  most  cases  enable 
one  to  determine  who  are  the  proper  parties;  but  it  will  be 
useful  to  show  in  contrast  the  ancient  with  the  modern  rules. 
For  this  purpose  the  rules  formulated  by  Professor  Dicey  have 
been  chosen;  but  it  would  be  doing  Professor  Dicey  an  injus- 
tice and  the  student  an  injury  to  print  these  rules  apart  from 
his  text  without  the  caution  which  he  gives.  He  says:  "Each 
rule  is  laid  down  in  the  form  of  an  absolute  statement,  but 
must  be  understood  as  subject  to  the  exceptions  afterwards 
enumerated ;  the  scheme  of  this  treatise  being  to  lay  down  in 
each  case,  first  the  general  rule,  and  then  the  exceptions  to  it." 
In  many  cases,  however,  it  will  be  seen  that  the  rule  is  inac- 
curately stated,  or  that  the  ancient  general  rule  does  not  now 
obtain. 


DICEY'S  ENGLISH  RULES. 

THE  PERSONS  WHO  CAN  SUE  AND  BE  SUED. 

Rule  1.  All  persons  can  sue  and  are  liable  to 
be  sued  in  an  action  at  law. 

Exception  1.  Felons,  outlaws,  and  alien  enemies  can- 
not sue. 

Exception  2.  The  sovereign,  foreign  sovereigns,  and 
ambassadors  cannot  be  sued. 

GENERAL  RULES  APPLICABLE  TO  ALL  ACTIONS. 

Rule  2.  No  action  can  be  brought  except  for 
the  infringement  of  a  right 


MODERN  AMERICAN 
RULES. 

Rule  1.  All  persons  have 
legal  capacity  to  sue  or 
be  sued.  An  alien  suing 
will  not  be  heard  dur- 
ing the  continuance  of 
the  war,1  and  a  political 
sovereignty  can  be  sued 
by  a  private  person  only 
by  consent2 

Rule  2.  Not  a  rule  relating 
to  parties.  (See  ante, 
%  20.)  The  word  "ac- 
tion "  is  used  in  antith- 
esis to  "suit;"  &  g.,  ac- 
tion at  law  —  suit  in 
chancery. 


lPost.  p.  180,  note  1. 

2  Andrews'  Am.  Law,  1097.   The  constitution  provides  that  one  state  may 
sue  another.    New  Jersey  v.  New  York,  3  Pet  461. 


66 


SPECIFIC   EULES    AS   TO   PAETIES. 


[§43. 


Rule  3.  No  action  can  be  brought  except  for 
the  infringement  of  a  common-law  right. 

Subordinate  Rule.  Where  one  person  has  a  legal 
and  another  an  equitable  interest  in  the  same  prop- 
erty, any  action  in  respect  of  such  property  must 
be  brought  by  the  person  who  has  the  legal  interest. 

Rule  4.  An  action  may  be  brought  for  every 
infringement  of  a  "legal"  right. 

Exception  1.  Where  an  injurious  act  amounts  to  a 

public  nuisance. 
Exception  2.  Where  the  wrong  done  amounts  to  a 

felony. 


Rule  5.  The  same  person  cannot  be  both 
plaintiff  and  defendant. 


Rule  6.  The  right  to  bring  an  action  cannot 
be  transferred  or  assigned. 


Rule  7.  No  person  can  be  sued  who  has  not 
infringed  upon  the  right  in  respect  of 
which  the  action  is  brought. 


Rule  8.  Every  person  can  be  sued  who  in- 
fringes upon  the  right  of  another. 


Rules  3  and  4.  An  action 
will  lie  for  the  infringe- 
ment of  any  legal  right 
as  distinguished  from 
an  equitable  interest, 
whether  it  be  founded 
on  a  contractual  or  com- 
mon-law obligation,  or 
is  based  on  a  statutory 
penalty.  (Andrews' Am. 
Law,  1062,  note  1.  See 
supra,  §  20.) 

Exception  1.  When  the  wrong 
amounts  toapublicnuisance, 
only  those  private  persons 
can  sue  who  suffer  a  peculiar 
injury  not  common  to  the 
public.  (3  Cooley's  Elk.  (4th 
ed.)220;Cooley  El.  Tort,  258.; 

Exception  %.  This  ancient  rule 
is  obsolete. 

Rule  5.  It  is  a  good  de- 
fense to  a  legal  action 
that  a  party  is  inter- 
ested on  both  sides,1  un- 
less it  be  in  a  represent- 
ative capacity.2 


Rule  6.  The  right  to  bring 
an  action  which  has  ac- 
crued may  be  trans- 
ferred.3 

Exception.    Actions    for    per- 
sonal torts.    Supra,  §  21. 


Rule  7.  An  action  must  be 
based  on  the  misfeas- 
ance or  nonfeasance  of 
the  defendant  or  a  per- 
son he  represents. 


Rule  8.  (Of.  Rule  63.)  This 
rule  is  but  a  corollary  of 
Rule  1  and  omits  the 
second  exception. 


1  Blaisdell  v.  Ladd,  14  N.  H.  129. 

2  Neilly  v.  Neilly.  23  Hun,  651. 
s  1  Chitty's  PL  17. 


43.] 


SPECIFIC    RULES   AS   TO   PARTIES. 


cr 


Bule  9.  The  liability  to  be  sued  cannot  be 
transferred  or  assigned. 

The  exceptions  to  this  rule  are:  the  assignment  of 
liabilities  on  covenants  which  "  run  with  the  land," 
the  assignment  of  liability  for  a  debt  by  agreement 
among  all  the  parties  interested,  and  the  assign- 
ment of  liabilities  in  consequence  of  marriage, 
bankruptcy,  or  death. 


ACTIONS  ON  CONTRACT. 

Plaintiffs—  General  Rules. 

Rule  10.  No  one  can  sue  for  the  breach  of  a 
contract  who  is  not  a  party  to  the  con- 
tract. 

Rule  11.  The  person  to  sue  for  the  breach  of 
a  simple  contract  must  be  the  person  from 
whom  the  consideration  for  the  promise 
moves. 

Exception  1.  Actions  by  a  person  appointed  by  stat- 
ute to  sue  on  behalf  of  others. 

Exception  %.  Actions  which  can  be  brought  either  by 
a  principal  or  an  agent. 

Exception  8.  Some  actions  for  money  had  and  re- 
ceived. 

Rule  12.  The  person  to  sue  for  the  breach  of 
a  contract  by  deed  is  the  person  with 
whom  the  contract  is  expressed  by  the 
deed  to  be  made,  i.  e.,  the  covenantee. 

Subordinate  Rule.  No  one  can  sue  on  a  covenant 
in  an  indenture  who  is  not  mentioned  among  the 
parties  to  the  indenture. 

Rule  13.  All  the  persons  with  whom  a  con- 
tract is  made  must  join  in  an  action  for 
the  breach  of  it. 


Rule  14.  One  and  the  same  contract,  whether 
it  be  a  simple  contract  or  a  contract  by 
deed,  cannot  be  so  framed  as  to  give  the 
promisees  or  covenantees  the  right  to  sue 
upon  it  both  jointly  and  separately. 


Rule  9.  The  liability  to  be 
sued  on  the  obligation 
of  a  third  party  may  be 
in  some  cases  incurred 
by  accepting  an  assign- 
ment or  conveyance  of 
property  with  an  ex- 
press or  implied  assum  p- 
tion  of  liability,1  and  by 
the  process  of  novation 
the  liability  may  be 
transferred  from  one 
originally  indebted  to  a 
new  party. 

Rules  10  and  11.  One  in 

privity  may  maintain 
an  action  on  a  contract 
made  for  his  beneGt, 
though  he  is  not  party 
to  it  and  has  not  fur- 
nished the  considera- 
tion.2 The  contract  of 
insurance  is  also  excep- 
tional. (Kurd  v.  Doty, 
86  Wia  1.) 


Rule  12.  Except  covenants 
which  run  with  the 
land. 


Rule  13.  This  rule  is  sub- 
ject to  at  least  two  ex- 
ceptions, viz.:  dormant 
partners  (see  Rule  21) 
and  the  carrier's  con- 
tract, mentioned  ante, 
§24 

Rule  14.  A  single  stipula- 
tion cannot  be  both  joint 
and  several  as  to  cove- 
nantees. (Ante,  p.  49.) 


i  Atl.  Nat.  Bank  v.  Harris,  118  Mass.  147;  Schley  v.  Pryer,  100  N.  Y.  71. 
2 'Ante,  §  22. 


68 


SPECIFIC   RULES    AS   TO   PARTIES. 


[§43. 


Rule  15.  The  right  to  bring  an  action  on 
contract  cannot  be  transferred  or  as- 
signed. 

Exception  1.  Contracts  made  assignable  by  statute. 

Exception  2.  Contracts  or  choses  in  action  assignable 
by  custom. 

Exception  3.  Assignment  of  a  debt  by  agreement  of 
all  the  parties. 

Exception  U.  Covenants  annexed  to,  or  running  with, 
estates  in  land. 

Exception  5.  Assignment  by  marriage,  bankruptcy, 
and  death. 

Rule  16.  The  right  of  action  on  a  contract 
made  with  several  persons  jointly  passes 
on  the  death  of  each  to  the  survivors,  and 
on  the  death  of  the  last  to  his  representa- 
tives. 
Exception.  Covenants  with  tenants  in  common. 

PRINCIPAL,  AND  AGENT. 

Hule  17.  A  contract  entered  into  with  a 
principal  through  an  agent  is  in  law  made 
with  the  principal,  and  the  principal,  not 
the  agent,  is  the  proper  person  to  sue  for 
the  breach  of  it. 

Exception  1.  Where  an  agent  is  contracted  with  by 
deed  in  his  own  name. 

Exception  %.  Where  the  agent  is  named  as  a  party  to 
a  bill  of  exchange,  etc. 

Exception  S.  Where  the  right  to  sue  on  a  contract  is 
by  the  terms  or  circumstances  of  it  expressly  re- 
stricted to  the  agent. 

Exception  4.  Where  the  contract  is  made  with  the 
agent  himself;  *'.  e..  where  the  agent  is  treated  as 
the  actual  party  with  whom  the  contract  is  made. 

Exception  5.  Where  the  agent  is  the  only  known  or 
ostensible  principal,  or  where  the  agent  has  made 
a  contract  not  under  seal  in  his  own  name  for  an 
undisclosed  principal. 

Exception  6.  Where  an  agent  has  made  a  contract  in 
the  subject-matter  of  which  he  has  a  special  inter- 
est or  property. 

Exception  7.  Where  the  agent  has  paid  away  money 
of  the  principal's  under  circumstances  which  gave 
a  right  to  recover  it  back. 

Hule  18.  A  person  who  enters  into  a  con- 
tract in  reality  for  himself,  but  apparently 
as  agent  for  another  person,  whom  he  does 
not  name,  can  sue  on  the  contract  as  prin- 
cipal 

Hule  19.  A  person  who  contracts  in  reality 
for  himself,  but  apparently  ar,  agent  for 
another  person,  whose  name  he  gives,  can- 
not sue  on  the  contract  as  principal. 


Rule  15.  In  this  case  the 
general  rule  is  other- 
wise. See  supra,  §  21. 


Rule  16.  A  joint  right  of 
action  goes  to  the  sur- 
vivors. 


Rule  17.  In  the  last  four 
exceptions  there  is  an 
election  to  sue,  but  it  is 
6nly  the  right  of  elec- 
tion. 


Rules  18  and  19.  This 
and  the  preceding  rule 
do  not  cover  all  the  sit' 
uations,  and  are  there- 
fore misleading.  In  the 
latter  situation,  if  per- 
formance by  the  agent 
is  accepted  with  knowl- 
edge, the  agent  may 
sue.1 


1  Mechem,  Agency,  §  760. 


§13.] 


SPECIFIC   RULES   AS   TO   PARTIES. 


CO 


PARTNERS  AND  UNINCORPORATED  COMPANIES. 

Rule  20.  A  firm  or  an  unincorporated  com- 
pany cannot  sue  in  its  name  as  a  firm  or 
as  a  company,  but  must  sue  in  the  names 
of  the  individual  members  of  the  firm  or 
of  the  company. 

Exception  1.  Where  an  unincorporated  company  is 
empowered  by  statute  to  sue,  etc.,  in  the  name  of 
its  public  officer. 

Exception  2.  Where  an  unincorporated  company  is 
being  wound  up. 


Rule  21.  All  persons  who  are  partners  in  a 
firm,  or  members  of  an  unincorporated 
company,  at  the  time  when  a  contract  is 
made  with  the  firm  or  the  company,  should 
join  in  an  action  for  the  breach  of  it. 

Exception.  One  partner  must  or  may  sue  alone  on 
contracts  made  with  him  on  behalf  of  the  firm  in 
the  same  cases  in  which  an  agent  must  or  may  sue 
on  contracts  made  with  him  on  behalf  of  his  prin- 
cipal 


Rule  22.  One  partner  or  member  of  an  un- 
incorporated company  cannot  sue  another 
upon  any  matter  involving  the  accounts 
of  the  partnership  or  company. 

Exception  1.  Where  there  is  an  agreement  which, 
though  relating  to  partnership  business,  can  be 
treated  as  separate  and  distinct  from  other  mat- 
ters hi  question  between  the  partners. 

Exception  2.  Where  the  matters  in  respect  of  which 
an  action  is  brought  are  connected  with  the  part- 
nership business  only  through  the  wrongful  act  of 
the  partner  sued. 


Rule  20. 

Exception  S.  The  codes  in  some 
states  allow  suit  for  or 
against  a  firm  in  the  firm 
name.  (Wigton  v.  Smith,  57 
Neb.  299.) 


Rule  21.  All  active  part- 
ners should  join  in  suits 
for  breach  of  contract, 
but  dormant  partners 
ought  not  to  be  joined. 
(Clark  v.  Miller,  4  Wend. 
628.) 


Rule  22.  Legal  actions  by 
one  partner  against  an- 
other in  respect  to 
claims  arising  out  of 
partnership  transac- 
tions would  lie  at  com- 
mon law  in  the  follow- 
ing cases: 

1.  The  action  of  account 

to  compel  an  ac- 
counting —  a  juris- 
diction concurrent 
with  equity.1 

2.  The  action  of  covenant 

if  the  partnership  ar- 
ticles contained  an 
express  agreement  to 
account  and  were 
under  seal.2 


1  Atwater  v.  Fowler,  1  Edw.  Ch.  417.   See  McMurray  v.  Rawson,  3  Hill,  59. 

2  Duncan  v.  Lyon,  3  Johns.  Ch.  351,  1  L.  ed.  644. 


70 


SPECIFIC    RULES    AS    TO    PARTIES. 


[§43. 


Rule  23.  Actions  for  breaches  of  contracts 
made  with  a  firm  must  be  brought: 

1.  On  the  bankruptcy  of  the  firm,  by  the 

trustee  or  trustees  of  the  bankrupts. 

2.  On  the  bankruptcy  of  one  or  more  part- 

ners, by  the  solvent  partners,  together 
with  the  trustee  or  trustees  of  the 
bankrupt  partner  or  partners. 

Rule  24.  On  the  death  of  a  partner,  the  sur- 
viving partners,  and  ultimately  the  last 
survivor  or  his  representative,  must  sue 
on  contracts  made  with  the  firm. 

CORPORATIONS  AND  INCORPORATED  BODIES. 

Rule  25.  A  corporation  or  incorporated  body 
must  sue  in  its  corporate  name. 


Rule  26.  A  corporation  or  incorporated  body 
cannot  sue  on  a  contract  not  under  seal. 

Exception  1.  Where  a  corporation  enters  into  a  con- 
tract concerning  matters  necessarily  incidental  to 
the  purposes  of  the  business  of  the  corporation. 

Exception  2.  Where  the  contract  relates  to  acts  of 
trivial  importance  or  of  constant  recurrence. 

Exception  3.  Where  the  consideration  for  the  con- 
tract is  executed  on  the  part  of  the  corporation. 

Exception  k.  Where  there  is  a  contract  implied  by 
law. 

Exception  5.  Where  a  corporation  is  authorized  by 
statute  to  contract  otherwise  than  under  seal. 


Rule  27.  A  corporation  or  incorporated  body 
cannot  sue  on  contracts  ultra  vires. 


Rule  28.  When  an  incorporated  company  is 
in  the  course  of  winding-up,  actions  on 
behalf  of  such  company  are  brought  and 
continued  in  its  corporate  name  by  the 
official  liquidator. 


8.  The  action  of  assump- 
sit  in  the  form  of  in- 
simul  computassent 
where  an  account  has 
already  been  stated — 
commonly  called  ac- 
count stated.1 

The  rule  against  partners 
suing  each  other  is 
based  upon  the  iden- 
tity of  parties.  That 
is  to  say:  One  party 
cannot  be  interested 
on  both  sides  of  an 
action  at  law.  He  can- 
not be  both  plaintiff 
and  defendant;  but 
where  the  obligation 
is  personal  between 
the  members,  the 
fact  that  the  claim  is 
connected  with  the 
partnership  will  not 
bar  the  action.2 

Rule  26  is  obsolete.  A  cor- 
poration may  be  sued  on 
an  express  contract  not 
under  seal,  or  even  on  an 
implied  contract. 


Rule  27  is  not  a  rule  relat- 
ing to  parties. 


Rule  28  depends  upon  local 
regulations. 


1  Morgan  v.  Adams,  37  Vt.  233;  Phillips  v.  Belden,  2  Edw.  Ch.  1,  6  L.  ed. 
285;  Mechem,  El.  Part.,  §  132. 

2  See  Mechem,  EL  Part.,  p.  99. 


SPECIFIC   KULES   AS   TO   PARTIES. 


71 


HUSBAND  AND  WIFE. 

Rule  29.  A  wife  cannot  during  coverture 
sue  without  her  husband. 

Exception  1.  Where  the  husband  is  civilly  dead. 

Exception  2.  Where  the  husband  is  legally  presumed 
to  be  dead. 

Exception  3.  Where  a  wife  has  a  "  judicial  separa- 
tion "  or  "  protection  order  "  under  20  &  21  Viet., 
cap.  85,  §§  26  and  21. 

Subordinate  Rule.  A  husband  cannot  bring  an  ac- 
tion against  his  wife,  or  a  wife  against  her  hus- 
band. 

Rule  30.  A  husband  and  wife  must  sue 
jointly  in  two  cases,  sc.: 

1.  On  contracts  made  by  the  wife  before 

marriaga 

2.  On  contracts  in  which  the  wife  claims  as 

executrix  or  administratrix. 

Rule  31.  A  husband  may  sue  either  alone  or 
jointly  with  his  wife  in  three  cases,  sc.: 
1.  On  negotiable  instruments  (e,  g.,  bills  of 
exchange)  given  to  his  wife  before  mar- 
riage. 

3.  On  contracts  made  after  marriage  with 

his  wife  alone. 

3.  On  contracts  made  after  marriage  with 
himself  and  his  wife. 

Rule  32.  The  following  are  the  results  of  er- 
rors as  to  joinder  of  parties  in  actions 
by  husband  or  wife: 

1.  If  a  husband  sues  alone  where  the  wife 
must  be  joined,  the  error  is  fatal. 

3.  If  a  wife  sues  alone  where  she  either  must 
or  may  be  joined,  the  only  result  is  to 
expose  her  to  a  plea  in  abatement. 

3.  If  a  husband  sues  with  his  wife  where  she 
neither  must  nor  may  be  joined,  the 
error  is  fatal. 


AS   TO    HUSBAND  AND  WIFE. 

Rules  29,  30  and  31. 
These  rules  are  rendered 
obsolete  by  enabling 
acts  which  exist  in 
every  state  in  the  Union. 
Married  women  may 
generally  sue  and  be 
sued  alone,  and  may 
even  sue  theirhusbands. 
The  ancient  disabilities 
which  resulted  from  the 
theory  of  the  common 
law  that  husband  and 
wife  were  one  person 
became  obsolete  upon 
the  destruction  of  that 
theory.1  According  to 
the  English  law,  the 
personal  property  of  the 
wife  reduced  to  posses- 
sion became  absolutely 
the  husband's,  but  until 
so  reduced  it  remained 
hers;  and  if  he  died  it 
did  not  go  to  his  estate. 
It  follows  that  at  pres- 
ent the  husband  and 
wife  can  sue  together 
only  when  there  is  a 
joint  interest2 


1  Two  entirely  separate  causes  of  action  may  arise  from  an  injury  to  the 
person  of  a  wife  during  the  disability  of  coverture  —  one  for  the  injury 
to  her,  and  the  other  for  the  damages  resulting  to  the  husband  from  loss  of 
her  services  and  society,  as  a  consequence  of  the  injury.  Though  these 
rights  of  action  have  their  origin  in  the  same  injuries,  the  damages  are 
distinct,  and  cannot  be  recovered  in  one  action.  The  only  damages  result- 
ing from  personal  injuries  to  a  wife  which  may  be  recovered  in  a  joint 
action  by  husband  and  wife  are  those  accruing  to  the  wife  herself  and 
which  would  survive  to  her  on  the  death  of  her  husband.  Fink  v.  Camp- 
bell, 70  Fed.  R  664. 

*  Bennett  v.  Bennett,  116  N.  Y.  584;  Fink  v.  Campbell,  70  Fed.  R.  664; 
Harris  v.  Brain,  33  111.  App.  510. 


72 


SPECIFIC    KULES    AS    TO    PARTIES. 


[§43. 


Rule  33.  Where  a  husband  is  bankrupt  and 
the  trustee  in  bankruptcy  sues  in  the  right 
of  the  wife,  he  must  join  the  wife  with 
him  in  suing. 

BANKRUPT  AND  TRUSTEE. 

Rule  34.  The  trustee  of  the  property  of  a 
bankrupt  must  sue  for  the  breach  of  any 
contract  made  with  the  bankrupt  before 
bankruptcy  in  which  the  bankrupt  has 
both  a  legal  and  a  beneficial  interest. 

Exception  1.  Contracts,  the  breach  of  which  involves 
injury  to  the  person  or  to  the  feelings  of  the  bank- 
rupt. 

Exception  8.  Contracts  uncompleted  at  the  time  of 
bankruptcy  in  which  the  personal  service  of  the 
bankrupt  is  of  the  essence  of  the  contract. 

Rule  35.  For  the  breach  of  any  contract 
made  with  the  bankrupt  during  the  con- 
tinuance of  the  bankruptcy  (in  which  the 
bankrupt  has  both  a  legal  and  a  beneficial 
interest),  either  the  trustee  may  sue  or  the 
bankrupt  may  sue,  if  the  trustee  does  not 
interfere. 

Exception  1.  Contracts,  the  breach  of  which  involves 
injury  to  the  person  or  the  feelings  of  the  bank- 
rupt. 

Exception  2.  Contracts  to  pay  for  the  personal  labor 
of  the  bankrupt  performed  after  his  bankruptcy. 

Rule  36.  Actions  on  contracts  made  with 
the  bankrupt  after  the  "  close  of  the  bank- 
ruptcy" must  be  brought  by  the  bank- 
rupt 

Rule  37.  All  the  trustees  must  join  in  suing. 

Rule  38.  On  the  removal,  retirement,  death, 
etc.,  of  a  trustee,  his  rights  pass  to  and  vest 
in  his  successor. 

Rule  39.  The  bankruptcy  of  a  plaintiff  does 
not  cause  the  action  to  abate. 

Rule  40.  If  an  action  be  brought  by  the 
bankrupt  in  cases  in  which  the  trustee 
must  sue,  or  by  the  trustee  in  cases  in 
which  the  bankrupt  must  sue,  the  error 
is  fatal. 


§43.] 


SPECIFIC   RULES   AS   TO   PARTIES. 


73 


EXECUTORS,  ADMINISTRATORS   AND  HEIRS. 

Rule  41.  The  personal  representatives  of  a 
deceased  person  (i.  e.,  his  executors  or  ad- 
ministrators) can  sue  on  all  contracts  of 
whatever  description  made  with  him, 
whether  broken  before  or  after  his  death. 

Exception  1.  Contracts,  the  breach  of  which  occa- 
sioned merely  personal  suffering  to  the  deceased. 

Exception  2.  Contracts  limited  to  the  life-time  of  the 
deceased. 

Exception  3.  Covenants  real,  broken  during  the  life- 
time of  the  deceased. 

Exception  U.  Contracts  on  which  the  deceased  must 
have  sued  jointly  with  other  persons. 

Subordinate  Rule  1.  An  executor  can  commence 
an  action  before  probate;  but  an  administrator  can- 
not commence  an  action  before  letters  of  adminis- 
tration granted  to  him. 

Subordinate  Rule  2.  On  the  death  of  the  plaintiff 
the  action  can  be  carried  on  by  his  executor  or  ad- 
ministrator. 

Rule  42.  An  executor  or  administrator: 

1.  Must  sue  in  his  representative  character 

on  all  contracts  made  with  the  de- 
ceased. 

2.  May  sue  either  in  his  representative  or 

in  his  personal  character  on  contracts 
made  with  him  as  executor  after  the 
death  of  the  deceased. 

Subordinate  Rule.  An  executor  or  administrator 
cannot  join  claims  made  in  his  representative  with 
claims  made  in  his  personal  character. 

Rule  43.  Co-executors  or  co-administrators 
must  all  join  as  plaintiffs  in  an  action. 

Exception  1.  Where  a  contract  is  made  with  some  of 

•     several  co-executors  only. 

Exception  2.  Where  an  executor  renounces  the  exec- 
utorship. 

Subordinate  Rule.  One  co-executor  or  co-admin- 
istrator cannot  bring  an  action  against  another 
concerning  matters  connected  with  the  executor- 
ship. 

Rule  44.  On  the  death  of  a  co-executor  or 
co-administrator,  his  rights  of  action  pass 
to  the  survivors,  and  ultimately  to  the 
last  survivor. 

Rule  45.  The  executor  of  a  sole  or  of  a  sole 
surviving  executor  represents  the  original 
testator;  but  the  administrator  of  an  ex- 
ecutor does  not  represent  the  testator,  nor 
does  the  administrator  of  an  administra- 
tor or  the  executor  of  an  administrator 
represent  the  original  intestata 


SPECIFIC   BULES   AS    TO   PARTIES. 


[§43. 


ACTIONS  ON  CONTRACT. 

Defendants  —  General  Rules. 

Rule  46.  No  person  can  be  sued  for  a  breach 
of  contract  who  is  not  a  party  to  the  con- 
tract 

Rule  47.  The  person  to  be  sued  for  the  breach 
of  a  simple  contract  is  the  person  who 
promises  or  who  allows  credit  to  be  given 
to  him. 

Exception  1,  Actions  against  a  person  appointed  by 
statute  to  be  sued  on  behalf  of  others. 

Exception  2.  Actions  on  some  contracts  implied  by 
law  or  actions  quasi  ex  contractu. 

Rule  48.  The  person  to  be  sued  for  the  breach 
of  a  contract  by  deed  is  the  person  by 
whom  the  contract  is  expressed  by  the 
deed  to  be  made;  i.  e.,  the  covenantor. 

Rule  49.  Where  several  persons  are  jointly 
liable  on  a  contract,  they  must  all  be  sued 
in  an  action  for  the  breach  thereof;  i,  e., 
joint  contractors  must  be  sued  jointly. 

Exception  1.  Where  a  co-contractor  has  become  bank- 
rupt. 

Exception  3,  Where  a  claim  is  barred  against  one  or 
more  joint  debtors,  and  not  against  others. 

Exception  3.  Where  a  co-contractor  is  resident  out  of 
the  jurisdiction. 

Exception  U.  Where  an  action  is  brought  against  com- 
mon carriers. 

Exception  5.  Where  an  action  is  brought  against  a 
firm,  some  of  the  members  of  which  are  nominal  or 
dormant  partners. 

Exception  6.  Where  a  co-contractor  is  an  infant  or  a 
married  woman. 

Rule  50.  Covenantors  and  other  contractors 
may  be  at  once  jointly  and  severally  liable 
upon  the  same  covenant  or  contract,  in 
which  case  they  may  be  sued  either  jointly 
or  separately. 

Rule  51.  The  liability  to  an  action  on  con- 
tract cannot  be  transferred  or  assigned. 

Exception  1.  Where  there  is  a  change  of  credit  by  an 

agreement  between  all  the  parties  (novation). 
Exception  2.  Where  there  are  covenants  between 
lessor  and  lessee  which  run  with  the  land. 

Rule  52.  The  liability  to  an  action  on  a  con- 
tract made  by  several  persons  jointly, 
passes  at  the  death  of  each  to  the  sur- 
vivors, and  on  the  death  of  the  last  to  his 
re  presen  tati  ves. 

1  Burr-ill's  Pr.  66. 


Rule  46.  This  rule  omits 
the  exceptions  which 
render  liable  the  as- 
signees of  covenants 
which  run  with  the 
land,  e.  g.,  lessees,  as- 
signees of  the  reversion, 
etc.i 


Rule  50.  But  not  an  inter- 
mediate number. 


Rule  51.  This  is  but  a 
crude  mode  of  stating 
that  one  cannot  by  his 
own  assignment  escape 
his  liability  on  contract. 
Novation  is  not  a  trans- 
fer but  an  extinguish- 
ment and  substitution. 


§43.] 


SPECIFIC    RULES    AS    TO   PARTIES. 


75 


PRINCIPAL  AND  AGENT. 

Rule  53.  A  contract  entered  into  by  a  prin- 
cipal, through  an  agent,  is  in  law  made  by 
the  principal,  and  the  principal,  not  the 
agent,  is  the  person  to  be  sued  for  the 
breach  of  it. 

Exception  1.  Where  an  agent  contracts  by  deed  in  his 
own  name. 

Exception  2.  Where  an  agent  draws,  indorses,  or  ac- 
cepts a  bill  of  exchange  in  his  own  name. 

Exception  3.  Where  credit  is  given  exclusively  to  the 
agent. 

Exception  U.  Where  an  agent  contracts  for  persons 
incapable  of  contracting. 

Exception  5.  Where  the  contract  is  made  by  the  agent 
himself,  {.  e.,  where  the  agent  is  treated  as  the 
actual  party  by  whom  the  contract  is  made,  or  in 
other  words,  where  the  agent,  though  acting  as 
such,  incurs  a  personal  responsibility. 

Exception  6.  Where  the  agent  is  the  only  known  or 
ostensible  principal,  or  where  a  contract  (not  under 
seal)  has  been  made  by  an  agent  in  his  own  name 
for  an  undisclosed  principal. 

Exception  7.  Where  money  received  by  an  agent  for 
his  principal  has  been  paid  under  a  mistake  of  fact, 
or  obtained  by  means  of  a  tort. 

Exception  8.  Where  an  agent  has  signed  certain  con- 
tracts on  behalf  of  a  limited  company  without 
using  the  word  "limited." 

Rule  54.  An  agent  who,  without  having  au- 
thority, enters  into  a  contract  on  behalf 
of  a  principal,  cannot  himself  be  sued  on 
the  contract,  but  is  otherwise  liable. 

Exception.  Where  the  authority  of  an  agent  has  with- 
out his  knowledge  expired  at  the  time  of  his  mak- 
ing the  contracts. 

PARTNERS    AND    UNINCORPORATED  COMPANIES. 

Rule  55.  A  firm  or  unincorporated  company 
cannot  be  sued  in  its  name  as  a  firm  or  as 
a  company,  but  must  be  sued  in  the  names 
of  the  individual  partners  or  members 
composing  the  firm  or  company. 

Rule  56.  All  persons  who  are  partners  in  a 
firm,  or  members  of  an  unincorporated 
company,  at  the  time  when  a  contract  is 
made  by  or  on  behalf  of  the  firm  or  com- 
pany, should  be  joined  in  an  action  for  the 
breach  of  it. 

Exception.  One  partner  must  or  may  be  sued  alone 
on  contracts  made  by  him  on  behalf  of  the  firm,  in 
the  same  cases  in  which  an  agent  must  or  may  be 
sued  on  contracts  made  by  him  on  behalf  of  his 
principal. 


SPECIFIC    RULES    AS   TO    PARTIES. 


Rule  57.  Actions  on  contracts  made  by  a 
firm  — 

1.  Cannot  on  the  bankruptcy  of  the  firm  be 

brought  either  against  the  trustee  or 
(as  a  general  rule)  against  the  individ- 
ual partners. 

2.  Must  on  the  bankruptcy  of  one  or  more 

partners  be  brought  against  the  solvent 
partner  or  partners. 

Rule  58.  On  the  death  of  a  partner,  the  sur- 
viving partners,  and  ultimately  the  last 
survivor  or  his  representative,  must  be 
sued  on  contracts  made  with  the  firm. 

CORPORATIONS  AND  INCORPORATED  BODIES. 

Rule  59.  A  corporation  or  incorporated  body 
must  be  sued  in  its  corporate  name. 

Rule  60.  A  corporation  or  incorporated  body 
cannot  be  sued  on  a  contract  not  under 
seal. 

Exception  1.  Where  a  corporation  contracts  concern- 
ing matters  necessarily  incidental  to  the  purposes 
or  business  of  the  corporation. 

Exception  2.  Where  the  contract  relates  to  matters 
of  trivial  importance,  or  of  constant  recurrence. 

Exception  S.  In  some  cases  of  an  implied  contract. 

Exception  k.  Where  a  corporation  is  authorized  by 
statute  to  contract  otherwise  than  under  seal. 

Rule  61.  A  corporation  or  incorporated  body 
cannot  be  sued  on  contracts  ultra  vires. 

Rule  62.  When  a  company  is  in  course  of 
winding  up,  actions  against  the  company 
can  either  be  stayed,  or  cannot  be  brought 
without  leave  of  the  court. 

INFANTS. 

Rule  63.  An  infant  cannot  be  sued  on  any 
contract  made  by  him. 

Exception  1.  Contracts  for  "necessaries." 
Exception  2.  Contracts  in  respect  of  permanent  prop- 
erty occupied  or  possessed  by  an  infant. 

Rule  64.  An  adult  (i.  e,,  a  person  of  or  over 
twenty-one  years  of  age)  cannot  be  sued 
on  contracts  made  by  him  during  infancy. 

Exception  1.  Contracts  on  which  an  infant  might  be 
sued. 

Exception  2.  Contracts  ratified  in  writing  after  full 
age. 

Exception  S.  Contracts  connected  with  the  possession 
of  permanent  property  and  not  repudiated  after 
full  age. 


Rule  60  is  contrary  to  the 
rule  of  law  that  a  cor- 
poration may  contract 
without  the  use  of  a  seal. 
That  is,  a  simple  con- 
tract in  writing  or  an 
implied  contract  may 
bind  corporations.  The 
rule  is  therefore  obso- 
lete. 

Rule  61  is  not  a  rule  as  to 
parties. 

Rules  63, 64  and  6 5.  This 
was  never  the  law  of 
England  or  America. 
Suit  may  be  brought 
and  the  judgment  re- 
covered against  an  in- 
fant in  an  action  ex 
contractu,  and  the  de- 
fense of  infancy  is  a 
privilege  to  be  set  up 
in  suspension  or  abate- 
ment of  the  action.  If 
not  so  taken  advantage 
of,  a  judgment  recov- 
ered against  an  infant 
is  binding.1 

These  rules  are  ap- 
parently based  on  the 
incapacity  to  contract 


1  Cohee  v.  Baer,  134  Ind.  375. 


SPECIFIC   RULES    AS   TO   PARTIES. 


TT 


Rule  65.  If  one  of  several  co  contractors  is 
an  infant,  and  the  others  are  adults,  the 
adults  alone  must  be  sued. 

HUSBAND  AND  WIFE. 

Rule  66.  A  wife  cannot  during  coverture  be 
sued  alone. 

Exception  1.  Where  the  husband  is  civilly  dead. 
Exception  Z.  Where  the  husband  is  legally  presumec 

to  be  dead. 
Exception  3.  Where  a  wife  has  a  judicial  separation 

or  protection  order  under  20  &  21  Viet.,  c.  85,  ss.  26 

and  21. 
Exception  U.  Where  the  husband  is  an  alien  enemy 

Subordinate  Kule.  A  wife  cannot  be  sued  by  her 
husband. 

Rule  67.  A  husband  and  wife  must  be  sued 
jointly  in  two  cases,  sc.: 

1.  On  contracts  made  by  the  wife  before 

marriage. 

2.  On  contracts  on  which  a  claim  is  made 

against  the  wife  as  executrix  or  admin 
tratrix. 

Rule  68.  In  all  actions  brought  to  charge  a 
husband  on  contracts  made  by  his  wife 
during  coverture,  the  husband  must  be 
sued  alone. 

Rule  69.  The  following  are  the  results  of 
errors  in  joinder  of  parties  in  actions 
against  husband  or  wife: 

1.  If  a  husband  is  sued  alone  where  his  wife 

must  be  joined,  the  error  is  fatal 

2.  If  a  wife  is  sued  alone,  where  she  must  be 

joined,  the  only  result  is  to  expose  the 
plaintiff  to  a  plea  in  abatement. 

3.  If  a  husband  is  sued  jointly  with  his  wife 

where  he  ought  to  be  sued  alone,  the 
error  is  fatal  unless  amended. 

BANKRUPT  AND  TRUSTEE. 

Rule  70.  A  bankrupt  cannot  after  his  dis- 
charge be  sued  on  contracts  made  before 
bankruptcy. 

Exception  1.  Debts  or  liabilities  held  not  to  be  prov- 
able by  the  court  of  bankruptcy. 

Exception  2.  Debts  or  liabilities  contracted  after  no- 
tice to  the  creditor  of  an  act  of  bankruptcy. 

Exception  S.  Debts  or  liabilities  incurred  by  means  of 
fraud  or  breach  of  trust. 

Exception  h.  Debts  or  liabilities  whereof  the  bankrupt 
has  obtained  forbearance  by  fraud. 

Exception  5.  Debts  due  to  the  crown. 


during  infancy.  When 
applied  to  the  subject 
of  pleading  there  is  a 
capacity  to  be  sued  but 
a  privilege  of  immunity. 
Rule  66  falls  of  course 
with  the  removal  of  the 
disabilities. 


78 


SPECIFIC   EULES    AS   TO   PARTIES. 


Exception  6.  Debts  with  which  the  bankrupt  stands 
charged  for  an  offense  against  a  statute  relating  to 
any  branch  of  the  public  revenue,  or  at  the  suit  of 
the  sheriff  or  other  public  officer  on  a  bail  bond, 
entered  into  for  the  appearance  of  any  person 
prosecuted  for  any  such  offense. 

Rule  7 1 .  An  und  ischarged  bankrupt  remains 
liable  on  contracts  made  by  him  before 
bankruptcy. 

Rule  72.  The  trustee  can  be  sued  as  a  trustee 
on  contracts  entered  into  by  him  in  his 
character  as  a  trustee. 

EXECUTORS,   ADMINISTRATORS  AND  HEIRS. 

Rule  73.  The  personal  representatives  of  a 
deceased  person  (i.  e.,  his  executors  or  ad- 
ministrators) can  be  sued  on  all  contracts 
made  with  him,  whether  broken  before  or 
after  his  death. 

Exception  1.  Contracts  limited  to  the  life-time  of  the 

deceased. 
Exception  2.  Covenants  in  law  not  broken  during  the 

life-time  of  the  deceased. 
Exception  3.  Contracts  on  which  the  deceased  must 

have  been  sued  jointly  with  other  persons. 

Subordinate  Rule  1.  An  action  can  be  commenced 
against  an  executor  before  probate,  but  an  action 
cannot  be  commenced  against  an  administrator  be- 
fore letters  of  administration  granted  to  him. 

Subordinate  Rule  2.  On  the  death  of  a  defendant 
the  action  may  be  carried  on  against  his  executor 
or  administrator. 

Rule  74.  An  executor  or  administrator  must 
be  sued  in  his  representative  character, 
i.  e.,  as  executor  or  administrator,  on  all 
contracts  made  by  the  deceased. 

Rule  75.  An  executor  or  administrator  must 
be  sued  in  his  personal  character  on  con- 
tracts made  by  himself. 

Exception.  Contracts  made  by  executor  distinctly  as 
executor. 

Subordinate  Rule.  In  an  action  against  an  execu- 
tor or  administrator,  claims  made  against  him  in 
his  representative  character  cannot  be  joined  with 
claims  made  against  him  in  his  personal  character. 

Rule  76.  All  co-executors  or  co-administra- 
tors who  have  administered  should   be 
joined  as  defendants  in  an  action. 
Rule  77.  The  heir  may  be  sued  on  contracts 

of  the  deceased  in  three  cases,  sc.: 
1.  On  contracts  by  deed  in  which  the  an- 
cestor expressly  binds  himself  and  his 
heirs. 


43.] 


SPECIFIC   RULES   AS   TO    PARTIES. 


79 


2.  On  contracts  of  record. 

3.  On  covenants  real. 

Subordinate  Rule  1.  A  devisee  is  liable  under  the 

same  circumstances  under  which  the  heir  would 

be  liable. 
Subordinate  Rule  2.  In  no  case  can  an  executor 

or  administrator  be  sued  together  with  an  heir  or 

devisee. 

ACTIONS  FOR  TORT. 

Plaintiffs  —  General  Rules. 
Rule  78.  No  one  can  bring  an  action  for  any 
injury  which  is  not  an  injury  to  himself. 


Rule  79.  The  person  who  sustains  an  injury 
is  the  person  to  bring  an  action  for  the  in- 
jury against  the  wrong-doer. 

Subordinate  Rule  1.  The  person  to  sue  for  any 
interference  with  the  immediate  enjoyment  or 
possession  of  land  or  other  real  property  is  the 
person  who  has  possession  of  it,  and  no  one  can 
sue  merely  for  such  an  interference  who  has  not 
possession. 

Subordinate  Rule  2.  For  any  permanent  injury 
to  the  value  of  land,  or  other  real  property,  i.  e., 
for  any  act  which  interferes  with  the  future  en- 
joyment of,  or  title  to,  the  land,  an  action  may  be 
brought  by  the  person  entitled  to  a  future  estate 
in  it,  i.  e.,  by  the  reversioner. 

Subordinate  Rule  3.  Any  person  may  sue  for  an 
interference  with  the  possession  of  goods,  who,  as 
against  the  defendant,  has  a  right  to  the  immedi- 
ate possession  of  such  goods;  and  no  person  can 
sue  for  what  is  merely  such  an  interference  who 
has  not  a  right  to  the  immediate  possession  of  the 


Subordinate  Rule  4.  Any  person  entitled  to  the 
reversionary  interest  in  goods  (i.  e.,  the  rever- 
sioner) may  bring  an  action  for  any  damage  to 
such  interest,  or,  in  other  words,  to  his  right  of 
ultimate  possession. 

Rule  80.  1.  Persons  who  have  a  separate 
interest  and  sustain  a  separate  damage 
must  sue  separately. 

2.  Persons  who  have  a  separate  interest,  but 

sustain  a  joint  damage,  may  sue  either 
jointly  or  separately  in  respect  thereof. 

3.  Persons  who  have  a  joint  interest  must 

sue  jointly  for  an  injury  to  it. 


Rule  78.  This  rule  omits 
the  consideration  of  the 
common-law  rules  as  to 
husband  and  wife,  par- 
ent and  child,  etc.,  and 
the  law  concerning  rep- 
resentative parties;  also 
action  allowed  by  stat- 
ute to  next  of  kin  for 
personal  injuries. 

Rule  79.  The  modern  rule 
is  that  the  real  party  in 
interest  must  bring  the 
action.  Supra,  pp.  33-36. 


80 


SPECIFIC   RULES   AS    TO   PARTIES. 


[§43. 


Rule  81.  The  right  of  action  for  a  tort  can- 
not be  transferred  or  assigned. 

Rule  82.  Where  several  persons  have  a  joint 
right  of  action  for  a  tort  it  passes  on  the 
death  of  each  to  the  survivors,  and  on  the 
death  of  the  last  (if  the  right  of  action  be 
one  that  survives)  to  his  representatives. 

PRINCIPAL  AND  AGENT. 

Rule  83.  A  principal  (or  employer)  can  never 
sue  for  what  is  merely  an  injury  to  his 
agent  (or  servant),  nor  an  agent  (or  serv- 
ant) for  what  is  merely  an  injury  to  his 
principal  (or  employer). 

PARTNERS. 

Rule  84.  All  the  partners  in  a  firm,  or  mem- 
bers of  an  unincorporated  company,  should 
join  in  an  action  for  wrong  done  to  the 
firm  or  company. 

Rule  85.  An  action  for  an  injury  to  the  prop- 
erty of  a  firm  must  be  brought: 

1.  On  the  bankruptcy  of  the  firm,  by  the 

trustee  or  trustees  of  the  bankrupts. 

2.  On  the  bankruptcy  of  one  or  more  part- 

ners, by  the  solvent  partners,  together 
with  the  trustee  or  trustees  of  the  bank- 
rupt partner  or  partners. 

HUSBAND  AND  WIFE. 

Rule  86.   A  husband  and  wife   must    sue 
jointly  in  three  cases: 

1.  For  injuries  to  the  person,  character,  or 

property  of  the  wife,  committed  before 
marriage. 

2.  For  injuries  to  the  person  or  character  of 

wife  committed  during  coverture;  and 

3.  For  injuries  for  which  the  wife  must  sue 

as  executrix  or  administratrix. 

Rule  87.  A  husband  may  sue  either  alone  or 
jointly  with  his  wife  for  all  injuries  done 
during  coverture  to  real  property.of  which 
the  husband  and  wife  are  seised,  or  to 
which  they  are  entitled  in  right  of  the 
wife. 

Exception.  Where  a  permanent  injury  is  done  to  the 
wife's  freehold. 

Rule  88.  The  husband  must  sue  alone  in  re- 
spect of  any  injuries  to  personal  property 
committed  during  coverture. 

i  Supra,  §  21. 


Rule  81.  The  right  of  ac- 
tion for  a  mere  personal 
tort  cannot  be  assigned, 
but  when  the  injury  is 
an  injury  to  property  it 
may  in  most  instances 
be  transferred  and  will 
survive  the  death  of  the 
person  owning  it.1 


Rules  86,  87  and  88  be- 
came obsolete  for  the 
same  reason  as  stated  to 
Rules  29  and  31. 


§43.] 


SPECIFIC    EULES   AS   TO   PARTIES. 


81 


BANKRUPT  AND  TRUSTEE. 

Bule  89.  The  trustee  and  not  the  bankrupt 
must  sue  for  injuries  to  the  real  or  per- 
sonal property  of  the  bankrupt  committed 
before  the  bankruptcy. 
Exception.  Trespass  to  land  before  bankruptcy. 

Rule  90.  For  injuries  to  property  acquired 
by  the  bankrupt  after  bankruptcy,  either 
the  trustee  may  sue  or  the  bankrupt  may 
sue  if  the  trustee  does  not  interfere. 

Bule  9 1 .  The  bankrupt  alone  can  sue  for  in- 
juries to  his  person,  feelings  or  reputa- 
tion. 

EXECUTORS  AND  ADMINISTRATORS. 

Rule  92.  The  personal  representatives  of  the 
deceased  (i.  e.,  his  executors  or  adminis- 
trators) can  sue  for  injuries  to  the  prop- 
erty of  the  deceased  done  during  his  life- 
time. 

Rule  93.  The  personal  representatives  of  the 
deceased  cannot  sue  for  injuries  to  the 
person,  feelings  or  reputation  of  the  de- 
ceased. 

Exception.  Actions  where  deceased  killed  by  negli- 
gence. 

Rule  94.  The  personal  representatives  of  the 
deceased  can  sue  for  injuries  to  his  per- 
sonal property  committed  after  his  death. 

Rule  95.  The  real  representative  of  the  de- 
ceased cannot  sue  for  any  wrong  done  to 
him. 

DEFENDANTS  —  GENERAL  RULES. 

Rule  96.  No  person  is  liable  to  be  sued  for 
any  injury  of  which  he  is  not  the  cause. 

Rule  97.  Any  person  who  causes  an  injury 
to  another  is  liable  to  be  sued  by  the  per- 
son injured. 

Exception.  Where  persons  are  protected  from  ac- 
tions. 

Rule  98.  One,  or  any,  or  all  of  several  joint 

wrong-doers  may  be  sued. 
Exception.  Persons  sued  as  joint  owners  of  land. 

Rule  99.  The  liability  to  be  sued  for  a  tort 

cannot  be  transferred  or  assigned. 
Exception.  Assignment  by  death. 
6 


Rule  96. 

Exception  1.  The  owner  of  a 
public  railroad  is  liable  for 
the  negligent  operation  of  it 
by  his  lessee.  (Railway  Co. 
v.  Brown,  17  Wall.  445;  Penn. 
Co.  v.  Ellett,  132  111.  654.) 

Exception  2.  A  municipal  corpo- 
ration is  liable  for  injuries  to 
third  persons  caused  by  the 
negligent  use  of  the  street  by 
abutting  owners.  (Chicago  v. 
Bobbins,  2  Black,  418.) 


82 


SPECIFIC   KULES    AS   TO    FAKTIES. 


[§43. 


Hule  100.  Each  wrong-doer's  separate  lia- 
bility to  be  sued  for  a  tort  passes  on  his 
death  (if  it  survives  at  all)  to  his  personal 
representatives.  The  joint  liability  of  sev- 
eral wrong-doers  passes  on  the  death  of 
each  to  the  survivors. 

PRINCIPAL  AND  AGENT. 

Hule  101.  A  principal  is  liable  to  be  sued 
for  the  torts  of  an  agent  either  commit- 
ted by  the  command  of  the  principal,  or 
subsequently  assented  to  or  ratified  by 
him. 

Bule  102.  An  employer  or  master  is  liable 
to  be  sued  for  the  torts  of  his  servant  if 
committed  in  the  course  of  the  servant's 
employment  and  for  his  master's  benefit, 
or,  in  other  words,  in  the  service  of  his 
master. 

Exception  1.  Where  servant  injured  by  fellow-serv- 
ant. 

Exception  S.  Where  the  master  is  compelled  to  em- 
ploy a  particular  person. 

Exception  S.  Where  the  employer  is  a  public  officer 
under  government. 

Bule  103.  A  servant  or  other  agent  is  liable 
to  the  person  wronged  for  acts  of  mis- 
feasance, or  positive  wrong  in  the  course 
of  his  employment,  but  not  for  acts  of 
non-feasance  or  mere  omission. 

Subordinate  Rule.  An  action  for  tort  may  be 
brought  either  against  the  principal  or  against  the 
immediate  actor  in  the  wrong,  but  cannot  be 
brought  against  an  intermediate  agent. 

PARTNERS. 

Bule  104.  One,  or  any,  or  all  of  the  partners 
in  a  firm,  or  members  of  an  unincorpo- 
rated company,  may  be  sued  jointly  for  a 
wrong  committed  by  the  firm  or  company. 


Exception. 
land. 


Where  partners  sued  as  co-owners  of 


CORPORATIONS. 


Bule  105.    A  corporation  or  incorporated 
body  can  be  sued  for  torts. 

INFANTS. 

Bule  106.  An  infant  may  be  sued  for  torts 
committed  by  him. 

Exception.   Where  fraud  closely  connected  with  a 
contract. 


§43.] 


SPECIFIC   RULES   AS   TO   PARTIES. 


83 


HUSBAND  AND  WIFE. 

Rule  107.  A  husband  and  wife  must  be  sued 
jointly  for  all  torts  committed  by  the  wife 
either  before  marriage  or  during  covert- 
ure. 

Exception.  Where  fraud  closely  connected  with  a 
contract. 

BANKRUPT  AND   TRUSTEE. 

Rule  108.  A  bankrupt  can  be  sued  both  be- 
fore and  after  obtaining  an  order  of  dis- 
charge for  all  torts  committed  by  him. 

EXECUTORS  AND  ADMINISTRATORS. 

Rule  109.  The  personal  representatives  of 
the  deceased  (i.  e.,  his  executors  or  admin- 
istrators) cannot  be  sued  for  torts  com- 
mitted by  him. 

Exception  1.  Injuries  to  property  within  3  &  4  Will. 
IV.,  c.  42. 

Exception  2.  Actions  for  dilapidations. 

Exception  S.  Actions  for  tort  brought  in  the  form  of 
actions  on  contract. 

EJECTMENT. 

(a)  Plaintiffs. 

Rule  1 10.  The  claimant  or  plaintiff  in  eject- 
ment must  be  a  person  who  has  the  legal 
right  to  enter  and  take  possession  of  the 
land,  etc.,  in  respect  of  which  action  is 
brought,  as  incident  to  some  estate  or  in- 
terest therein. 

Rule  111.  All  the  claimants  or  plaintiffs  in 
whom  the  title  is  alleged  to  be  should  join 
in  bringing  an  action  of  ejectment. 

(b)  Defendants. 

Rule  112.  The  persons  to  be  made  defend- 
ants in  an  action  of  ejectment,  i.  e.,  to  be 
named  in  the  writ,  are  all  the  tenants  in 
possession  of  the  land,  etc.,  sought  to  be 
recovered. 

Rule  113.  The  persons  who  have  a  right  to 
defend  in  an  action  of  ejectment  are  any 
persons  named  in  the  writ,  and  any  per- 
son who  is  in  possession  by  himself  or  his 
tenant. 

NON-JOINDER  AND  MISJOINDER  OF  PARTIES,  AND 
AMENDMENT. 

X 

Rule  114.  An  action  brought  by  a  wrong 
plaintiff,  or  against  a  wrong  defendant, 
must  fail 


Rule  107  falls  for  the  same 
reason  as  stated  to  Rules 
29,  30  and  31. 


Rules  114  to  118.  These 
rules  are  not  safe  guides 
to  follow  in  American 
courts.  Compare  §§  33 
to  42,  supra. 


84: 


SPECIFIC    BULES    AS   TO   PARTIES. 


[§43. 


Hule  115.  In  an  action  on  contract: 

1.  A   non-joinder   of   plaintiffs    is,    unless 

amended,  a  fatal  error. 

2.  A  misjoinder  of  plaintiffs  leads  only  to 

increased  costs. 

Rule  116.  In  an  action  on  contract: 

1.  A  non-joinder  of  defendants  gives  rise  to 

a  plea  in  abatement. 

2.  A   misjoinder  of   defendants  is,  unless 

amended,  fatal. 

Hule  117.  In  an  action  for  tort: 

1.  A  non- joinder  of  plaintiffs  gives  rise  to  a 

plea  in  abatement. 

2.  A  misjoinder  of  plaintiffs  leads  only  to 

increased  costs. 

Eule  118.  In  an  action  for  tort:     • 

1.  A  non- joinder  of  defendants  is  no  error. 

2.  A  misjoinder  of  defendants  leads  only  to 

increased  costs. 
Exception.  Actions  for  torts  concerning  real  property. 


CHAPTER  IY. 

ELECTION  OF  REMEDIES. 

§  44.  The  election  of  a  remedy  consists  in  selecting  from  out 
the  concrete  mass  of  facts  which  embraces  the  subject  of  dis- 
pute the  elemental  facts  which  go  to  make  up  two  or  more 
several  causes  of  action  which  may  arise  out  of  a  single  trans- 
action, but  which,  according  to  the  rules  of  law,  necessarily  pro- 
ceed upon  distinct  and  inconsistent  theories,  and  choosing  upon 
which  of  these  the  complaining  party  will  ground  his  action. 
For  this  purpose  it  is  allowable  to  ignore  or  waive  the  exist- 
ence of  a  contract  and  sue  for  the  tort,  or  the  existence  of  a 
tort  and  assume  a  contract. 

Waiving  a  tort  and  implying  a  contract  is  permitted  where 
property  has  been  wrongfully  appropriated  to  the  diminution 
of  the  estate  of  the  owner  and  the  appropriation  of  value  by 
the  wrong-doer  by  conduct  which  is  violative  of  the  common 
obligations  resting  upon  all  alike,  and  actionable  irrespective 
of  any  contractual  relation  which  may  or  may  not  exist  be- 
tween the  parties.1 

Waiving  the  contract 2  is  allowed  irrespective  of  whether  prop- 
erty is  involved  in  the  transaction ;  and  wherever  the  relation 
between  the  parties  raises  a  common-law  duty  or  obligation 
distinct  from  the  mere  contract,  though  perhaps  arising  out  of 

1  Cooley,  Torts  (2d  ed.),  107;  Gould  same  class  of  cases  where  the  con- 

v.  Baker,  12  Tex.  Civ.  App.  669.    "At  verted  property  has  assumed  altered 

law,  in  many  cases,  if  property  be  forms  by  successive  investments,  the 

tortiously  taken  or  converted,  the  owner  may  follow  it  as  far  as  he  can 

tort-feasor  may  be  sued  in  trespass  trace  it  and  sue  at  law  for  the  sub- 

or  trover,  or  the  injured  party  may  stituted  property,  or  he  may  hold 

waive  the  tort  and  sue  in  ussumpsit.  the  wrong-doe*  liable  for  appropri- 

In  the  latter  case  the  same  results  ate    damages.     There   are   kindred 

follow  as  if  there  had  been  an  im-  principles  in  equity  jurisprudence, 

plied  contract.    The  plaintiff  is  not  whence,  indeed,  these  rules  of  the 

permitted  to  set  up  his  tort  to  defeat  common  law  seem  to  have  been  de- 

the  action,  and  the  recovery  of  a  rived."    May  v.  Le  Claire,  11  WalL 

judgment  will  bar  a  further  action  233. 

ex  delicto  by  the  plaintiff.    In  the  2  The  tort  is  never  implied. 


86  ELECTION   OF   EEMEDIES.  [§  45, 

it,  and  the  one  upon  whom  this  duty  rests  violates  it  and  dam- 
ages the  other,  the  latter  may  elect  to  proceed  upon  the  viola- 
tion of  this  common-law  obligation  and  treat  the  wrongful 
conduct  as  a  tort.1  It  will  be  observed  that  in  the  first  situ- 
ation there  is  supposed  a  diminution  or  damage  to  a  property 
right  and  the  appropriation  of  the  benefit  by  the  wrong-doer, 
whereas  in  the  second  situation  property  may  or  may  not  be- 
involved,  and  the  subject  of  the  action  may  be  personal  in  its. 
nature. 

§  45.  Utility  of  fictions.  —  The  transaction  or  res  gestcB  out 
of  which  an  alleged  injury  arises  frequently  presents  situations. 
which  are  so  equivocal  in  their  nature  that  it  is  difficult  before 
trial  to  aifirm  positively  the  legal  result  of  the  acts  and  conduct 
of  the  parties.2  In  some  situations,  even  where  no  real  con- 
tract is  actually  made,  it  is  manifestly  useful  and  equitable  to 
both  parties  that  a  crime  or  a  tort  which  has  been  committed 
may  be  waived  and  the  injured  party  compensated.3  This  is- 
accomplished  by  the  use  of  fictions,  by  which  the  tort  or  crime 
is  ignored  and  a  contract  is  implied.  These  fictions  are  as  fre- 
quently resorted  to  under  the  codes  as  they  were  at  common, 
law,  and  for  precisely  the  same  purpose,  although  it  was  sup- 
posed to  be  one  of  the  principal  objects  of  the  code  to  do  away 
with  these  fictions.  A  member  of  the  constitutional  conven- 
tion which  provided  for  the  first  New  York  code,  speaking  of 
the  forms  of  action  under  the  common  law,  after  remarking 
that  the  pleadings  were  almost  invariably  fictitious  and  filled 
with  false  allegations  from  beginning  to  end,4  says:  "For  in- 
stance, if  one  were  to  rob  a  person  of  his  watch,  the  forms  of 
pleading  at  common  law  would  allow  him  to  waive  the  tort 
and  bring  an  action  for  the  value  of  the  watch  as  upon  a  pur- 
chase. He  could  charge  that  on  a  certain  day  he  sold  and  de- 
livered to  the  defendant  a  certain  watch,  in  consideration 


,  Torts  (2d  ed.),  103;  An-  the  actions  of  ejectment,  trover,  and 

drews'  Am.)  Law,  p.  1062;  W.,  St.  L.  &  the  common  counts,  with  the  general 

P.  Ry.  Co.  v.  Shacklet,  105  III  364-  issue.    By  far  the  greater    part  of 

379.  common-law  pleading  consisted  in  a 

2  A  striking  example  is  found  in  truthful  narration,  and  in  modern 
Rich  v.  N.  Y.  C.  &  H.  R.  Ry.  Co.,  87  times  the  fictitious  allegations  are 
N.  Y.  382.  not  necessary  in  ejectment  and  tro- 

3  See  May  v.  Le  Claire,  supra.  ver. 

4  The  fictitious  pleadings  were  in 


§  45.]  ELECTION   OF   REMEDIES.  87 

whereof  the  thief  promised  to  pay,  when  he  should  be  thereto 
requested,  as  much  as  such  watch  was  reasonably  worth,  and 
that  it  was  reasonably  worth  $250.  The  defendant  would  an- 
swer non  assumpsit  that  he  did  not  promise.  Every  word  in 
the  declaration  would  be  false,  and  the  plea  would  be  mani- 
festly true ;  and  yet  there  was  no  judge  that  would  not  instruct 
the  jury  that,  though  this  was  a  very  outrageous  act,  the  party 
whose  watch  it  was  had  the  right  to  waive  the  wrong,  and  to 
have  twelve  men  say  on  their  oaths  that  the  defendant  did 
promise  to  pay  what  the  watch  was  reasonably  worth  in  man- 
ner and  form  as  he  had  alleged."  This  he  characterizes  (and 
truly)  a  fair  specimen  of  the  fiction  which  existed  in  the  com- 
mon-law mode  of  pleading.  He  could  consume  hours  in  giving 
instances,  but  considered  one  sufficient.1  This  is  but  a  fair 
specimen  of  the  complaint  against  the  fictions  of  the  common 
law;  but,  as  we  shall  see,  the  whole  doctrine  of  the  election  of 
remedies  depends  upon  this  same  fiction. 

Where  the  election  consists  in  waiving  the  tort  and  suing  as 
upon  contract,  the  ancient  doctrine  of  implied  contract  is  in- 
voked. This  doctrine  rests  entirely  upon  a  legal  fiction.  Mr. 
Bishop  says :  "  One  of  the  most  interesting  features  of  our  law 
is  its  fictions.  Not  quite  all  of  them  are  useful  and  wise,  but 
most  are,  and  some  of  them  are  so  essential  that  they  could  be 
dispensed  with  only  at  great  inconvenience."  Of  the  latter 
sort  he  characterizes  the  fiction  of  implied  contracts.  To  ac- 
commodate the  procedure  and  render  the  law  itself  more  lucid, 
the  fiction  that  the  law  creates  in  certain  circumstances  a  con- 
tract has  been  recognized  rather  than  invented ; 2  and,  as  was 

1  First  Report  Code  Commissioners  taking  and  converting  of  said  money 
of  New  York,  p.  70.  The  identical  to  the  use  and  benefit  of  defendants, 
thing  here  complained  of  is  done  in  they,  said  defendants,  promised  and 
the  code  states.  In  Gould  v.  Baker,  became  liable  to  pay  to  plaintiff 
12  Tex.  Civ.  App.  669,  where  the  the  said  sum  of  four  hundred  and 
money  was  stolen,  the  court  says:  ninety-five  dollars,  which  sum  of 
"The  petition  charged:  'That  de-  money  is  long  since  due,  and,  though 
fendants  fraudulently  and  unlaw-  often  requested  so  to  do,  the  defend- 
fully  and  by  means  of  false  pretense,  ants,  and  each  of  them,  have  refused, 
and  without  the  knowledge  or  con-  and  still  refuse,  to  pay  the  same  to 
sent  of  plaintiff,  took  said  money  plaintiff,  or  to  pay  him  any  part 
from  plaintiff,  and  appropriated  the  thereof,  to  plaintiff's  damage  four 
same  to  the  use  and  benefit  of  de-  hundred  and  ninety-five  dollars,  for 
fendants,  and  withheld  the  same  which  he  sues.' " 
from  plaintiff;  that  by  reason  of  the  2  Bishop  on  Cont.,  §§  182,  183. 


88  ELECTION   OF   EEMEDIES.  [§  46. 

noticed  by  the  author  last  quoted,  one  court  has  deemed  the 
term  "implied  "  less  accurate  to  designate  the  legal  conclusion 
drawn  than  the  word  "  created," l  but  this  is  not  tenable.2 

§  46.  The  doctrine  illustrated. —  This  doctrine  is  stated 
by  Judge  Peckham  in  a  somewhat  recent  New  York  case,3 
where  the  complaint  charged  the  defendants  with  taking  and 
carrying  away  from  a  mill  the  machinery  therein,  and  wherein 
it  was  held  that  the  action  was  in  its  nature  ex  contractu  and 
not  ex  delicto  for  the  wrong  done  by  the  plaintiff.  The  learned 
judge  states  the  fiction  and  the  reasons  for  the  same  admi- 
rably, thus:  "As  the  defendants  therein  had  not,  after  their 
conversion  of  it,  themselves  sold  or  otherwise  disposed  of  the 
property  which  they  had  acquired  of  plaintiffs,  the  fictions  of 
the  receipt  by  the  defendants  of  the  money  for  the  sale  of 
the  property  charged  ex  cequo  et  lono  they  ought  to  pay  back 
to  plaintiffs,  and  which  they  therefore  impliedly  promised  to  pay 
back,  could  not  be  indulged  in,  and  the  position  of  the  parties 
would  have  been  at  one  time  the  subject  of  some  doubt,  whether 
there  was  any  foundation  of  the  doctrine  of  an  implied  prom- 
ise in  such  case  or  any  possibility  of  the  waiver  of  tort  (trover) 4 
committed  by  the  defendants  in  the  conversion  of  the  property." 
He  further  notices  the  conflict  of  authority,  and  adds  that  "  the 
great  weight  of  authority  in  this  country  is  in  favor  of  the  right 
to  waive  the  tort.  ...  If  the  wrong-doer  has  not  sold  the  prop- 
erty, but  still  retains  it,  plaintiff  has  the  right  to  waive  the  tort 
and  proceed  upon  an  implied  contract  of  sale  to  the  wrong-doer 
himself,  and  in  such  event  he  is  not  charged  with  the  money 
had  and  received  (indebitatus  assumpsif)  by  him  to  the  use  of 
the  plaintiff.  The  contract  implied  is  one  to  pay  the  value  of 
the  property  as  if  it  had  been  sold  to  the  wrong-doer  (goods 
sold  and  delivered).  If  the  transaction  is  thus  held  by  the 
plaintiff  as  a  sale,  of  course  the  title  of  the  property  passes  to 
the  wrong-doer."  We  may  notice-  that  the  plaintiff  might  also 
have  brought  trespass. 

By  this  case  it  will  be  seen  that  originally  it  was  only  in  cases 
where  the  property  had  been  sold  or  disposed  of  by  the  tort- 
feasor,  or  converted  into  money  or  money's  worth,  that  the  tort 

1  Central  Bridge  v.  Abbot,  4  Gush.        3  Terry  v.  Hunger,  121  N.  Y.  162,  8 
473.  L.  E.  A.  217,  18  Am.  St.  R  803. 

2  Nolan  v.  Swift,  111  Mich.  56.  4  These  parentheses  are  added. — ED. 


§§  47,  4:8.]  ELECTION   OF   REMEDIES.  89 

might  be  waived ;  and  the  form  of  action  used  in  such  cases  was 
the  common  count  for  money  had  and  received,  and  the  plaint- 
iff, if  the  defendant  still  possess  the  thing,  might  recover  it  in 
specie  by  replevin,  or  its  value  in  trover.  The  doctrine  of  the 
New  York  case  just  cited  very  generally  prevails  throughout 
the  United  States.  So  in  certain  cases  where  one  is  not  in  pos- 
session of  his  property  he  has  a  right  to  ignore  a  conversion 
which  has  already  taken  place,  sell  the  property  to  a  third  per- 
son, and  this  third  person  may  demand  the  possession  of  the 
property,  and  on  refusal  bring  an  action  of  trover  for  the  sec- 
ond conversion.1 

§  47.  Grounds -of  the  implication. —  It  is  generally  held 
that  there  must  be  some  basis  for  the  implication  of  the  as- 
sumpsit, as  that  the  defendant  has  in  some  manner  voluntarily 
converted  the  property  of  the  plaintiff  to  his  own  use,  or  ap- 
propriated it  in  some  manner  beneficial  to  him.2  The  impli- 
cation is  based  upon  the  acts  of  the  defendant  and  the  justice 
of  the  matter.  Thus,  an  action  of  assumpsit  or  for  use  and 
occupation  of  land  will  not  lie  for  the  mere  occupation  by  a 
trespasser.3  There  must  be  some  element  of  voluntarily  in- 
fringing another's  right  upon  which  to  base  the  fiction  of  the 
promise  to  pay  the  benefit  arising  from  such  act,4  or  some  con- 
duct which  amounts  to  an  evidence  of  an  intention  to  volun- 
tarily appropriate  the  property  of  another  before  the  assumpsit 
will  be  implied.5 

§  48.  Extent  of  the  right, —  In  cases- where  the  injury  is 
one  that  may  be  waived,  the  plaintiff  may  exercise  his  election 
to  waive  the  contract  and  sue  in  tort,6  or  waive  the  tort  and 
sue  in  contract;  and  although  the  ancient  common-law  doc- 
trine was  otherwise,  the  doctrine  is  now  established  that  the 
plaintiff  may  waive  a  felony  and  sue  either  in  an  action  of  tort 
or  on  contract.7  But  legal  titles  cannot  be  tried  in  this  collat- 

1  Tome  v.  Dubois,  6  Wall.  548;  Hall  §  34,  and  McGoon  v.  Ankeny,  11  111. 

v.  Robinson,  2  N.  Y.  293.     It  is  not  558. 

allowed  in  some  jurisdictions  to  sell        2  Alderman  v.  Ennor,  45  IlL  128; 

property  which  is  held  in  adverse  Payne's  Appeal,  65  Conn.  397. 
possession.    None  of  the  above  cases        3  Downs  v.  Finnegan,  58  Minn.  112. 
go  quite  the  length  of  allowing  the        4  Loyd  v.  Hough,  1  How.  153. 
sale  where  the  property  is  held  ad-        s  Lazarus  v.  Phelps,  152  U.  S.  81. 
versely.    Compare  with  the   above        6  Cooley  on  Torts,  p.  90. 
cases,  "  Hawes'  Parties  to  Actions,"        '  Cooley  on  Torts,  pp.  86-88. 


90  ELECTION   OF   REMEDIES.  [§  49. 

eral  way;  and  while  there  is  conflict  of  authority,  the  probable 
weight  is  in  favor  of  the  proposition  that  where  the  property 
involved  was  in  the  adverse  possession  of  the  defendant  at  the 
time  of  the  acts  complained  of,  a  form  of  action  proper  for  the 
trial  of  title  in  that  jurisdiction  would  be  required.1 

§  49.  An  election  between  inconsistent  remedies  is  bind- 
ing.—  It  is  important  that  the  most  appropriate  form  of  action 
should  be  chosen  in  the  first  instance;  for  an  election  once 
made,  or  acts  which  amount  to  an  election  to  pursue  one  or 
the  other  of  the  optional  courses,  will  bind  the  party  to  pro- 
ceed upon  that  theory,  and  he  will  not  have  the  right  to  after- 
wards change  the  cause  of  action.2  The  codes,  quite  as  strictly 
as  the  common  law,  require  that  the  plaintiff  adopt  and  adhere 
to  some  particular  theory  of  his  case,  and  all  his  allegations 
and  proof  must  conform  to  this  theory.  He  cannot,  in  an  in- 
discriminate jumble,  embrace  several  forms  of  action  in  a 
single  count,  but  will  be  compelled  to  elect  as  to  what  single 
theory  he  will  pursue.3 

As  we  have  seen,  it  is  not  the  province  of  equity  to  award 
damages  except  in  cases  where  the  damages  are  incidental  to- 
some  other  equitable  ground  of  relief;4  hence,  in  case  of  a 
continuing  damage  or  nuisance,  a  party  might  sue  for  damages 
which  had  already  accrued  and  bring  a  bill  in  equity  to  enjoin 
the  continuance  of  the  nuisance.5  And  there  is  no  inconsist- 
ency in  pursuing  several  remedies  having  as  their  object  the 
attainment  of  the  same  thing,  e.  g.,  a  bill  in  chancery  to  set 
aside  a  contract  of  credit  in  a  purchase  of  goods,  an  attach- 
ment, and  also  an  action  for  the  purchase  price.6  The  election 
is  required  only  of  inconsistent  remedies,7  and  is  binding  only 
on  the  idea  of  estoppel;  that  a  deliberate  choice  which  has 
affected  the  other  party  is  final.8 

1  Downs  v.  Finnegan,  58  Minn.  112.  *  Worthington  v.  Waring,  157  Mass. 

2Keely  v.  Long,  71  Md.  385,  5  L.  431. 

R   A.   759;   Grossman  v.  Universal  6 3  Cooley's  Black.  (3d  ed.)  220. 

Rubber  Co.,  131  N.  Y.  636,  13  L.  R  A.  6  Grossman   v.  Universal    Rubber 

91,  and  note;  Terry  v.  Munger,  121  N.  Co.,  131  N.  Y.  636,  13  L.  R  A.  91. 

Y.  162,  8  L.  R  A.  216,  18  Am.  St.  R  7  Smith  v.  Hodsen,  4  T.  R  211,  2 

803;  Cook  v.  First  Nat.  Bank,  83  Wis.  Smith's  L.   C.   198.    See  Wilson  v. 

81,  35  Am.  St  R  17.  Pearson,  20  111  81. 

3  Supervisors   v.   Decker,   30  Wis.  8  Johnson  Co.  v.  Mo.  Pac.Ry.Co.> 

624;  ^Etna  Powder  Co.  v.  Hildebrand,  126  Mo.  344    See  Marshall  v.  Otto,  59- 

137  Ind.  463.  Fed.  R  249. 


§§  50,  51.]  ELECTION    OF   REMEDIES.  91 

§  50.  The  causes  of  action  must  be  identical. —  In  order  to 
require  an  election  and  constitute  such  election  a  bar  or  a  decis- 
ion of  the  case  res  adjudicate,  it  is  necessary  that  the  causes  of 
action  involved  in  the  suit  invoked  as  a  bar  should  be  identical 
with  the  cause  of  action  upon  which  the  suit  in  progress  is 
based.  It  is  not  enough  that  the  subject  of  the  suit  or  the  con- 
duct or  acts  which  constitute  the  grounds  of  action  be  iden- 
tical, because  a  single  course  of  conduct  may  give  rise  to  several 
distinct  rights  of  action,  vesting  in  different  persons,  e.  g.,  hus- 
band and  wife,  parent  and  child,  master  and  servant;  or  there 
may  arise  by  the  same  act  and  conduct  causes  of  action  of  a 
different  nature, —  for  example,  a  mere  personal  injury  and  an 
injury  to  a  property  right.  These  matters  must  be  constantly 
borne  in  mind,  not  only  for  the  purpose  of  election  of  the  rem- 
edy, but  for  determining  the  survivability  of  actions  and  their 
extinguishment  by  the  statute  of  limitations.1 

§  51.  Considerations  governing  selection  of  remedy, —  In 
order  to  properly  determine  the  form  of  action  to  be  pursued, 
or,  to  put  it  in  more  technical  language,  to  make  the  proper 
election,  it  is  necessary,  as  well  under  the  code  as  in  the  com- 
mon-law states,  to  have  in  mind  the  different  ways  in  which 
the  choice  of  the  remedy  is  likely  to  become  important. 

(a)  Disability:  In  case  the  party  to  be  sued  is  a  single  person, 
it  may  be  important,  if  the  party  is  an  infant,  or  non  compos 
mentis,  or  a  married  woman,  to  select  a  form  of  tort,  under  the 
well-known  doctrine  that  such  persons  are  liable  for  their  torts, 
though  they  may  not  be  liable  \o  be  sued,  in  form  ex  contractu. 

(b)  The  survival  of  actions:  The  death  of  a  party  who  has  a 
supposed  right  of  action  may  possibly  control.     It  was  a  rule 
of  the  common  law  that  a  mere  personal  right  of  action  dies 
with  the  person.2    This  rule  must  not  mislead  one  to  suppose 
that  the  actions  which  are  termed  personal  actions  are  meant 
by  this  expression  "  a  personal  right  of  action."    The  distinc- 
tions here  required  to  be  made  are  nice,  but  they  are  real  and 
do  not  depend  upon  the  forms  of  action.   They  are  as  essential 
under  one  form  of  procedure  as  under  another.     For  example, 
in  those  jurisdictions  which  hold  that  the  injury  inflicted  upon 
a  husband  or  wife  by  enticing  away  the  consort  is  an  injury  in 

1See  Union  Pac.  Ey.  Co.  v.  Kelley,  2  Broom's  Maxims,  908;  ante,  p.  40, 
stated  on  p.  93.  note  3. 


92  ELECTION   OF   REMEDIES.  [§  51. 

the  nature  of  a  property  right,  and  not  a  mere  personal  tort, 
it  would  be  held  that  the  right  of  action  would  survive.1  The 
same  reasoning  applies  to  injuries  to  children  and  servants.2 
An  interesting  case  was  recently  decided  by  the  court  of  Colo- 
rado. K.,  an  express  messenger,  was  injured  by  the  Union 
Pacific  Eailroad  Company,  and  sued  it  in  the  United  States 
circuit  court  in  tort  for  damages  on  account  of  personal  inju- 
ries, which  suit  abated  on  account  of  his  death.  His  adminis- 
tratrix brought  another  suit  against  the  company,  based  upon 
a  contract  between  the  Pacific  Express  Company  and  the  de- 
fendant, imposing  upon  the  latter  the  duty  to  carry  the  express 
messengers.3  The  defendant  pleaded  the  other  suit  as  res  ad- 
judicata.  The  court  quite  clearly  distinguished  between  that 
case  and  a  case  involving  property,  holding  that  this  was  not 
a  case  where  the  party  had  an  election  of  remedies  or  could  be 
held  to  an  election,  but  that  the  cause  of  action  in  tort  for  the 
negligent  injury  was  an  entirely  distinct  and  separate  cause  of 
action,  and  held  the  plea  of  res  adjudicata  bad,  thus  holding 
that  by  reason  of  this  contract  the  suit  survived  to  the  estate 
of  the  deceased.4  In  Jenkins  v.  Bennett*  the  plaintiff  contracted 
with  the  defendants  to  make  extensive  repairs  upon  a  hotel. 
The  complaint  alleged  that  the  defendants  prevented  perform- 
ance. After  issue  joined  one  of  the  defendants  died.  It  was 
held  that  the  mere  preventing  of  performance  was  a  personal 
tort  and  the  action  did  not  survive  against  the  estate  of  the 
deceased  defendant.  The  principles  which  control  the  assign- 
ability  and  transferability  of  rights  of  action  are  the  same  as 
those  which  govern  their  survival,  which  is  but  another  mode 
of  transfer,  i.  e.,  by  death.6 

(c)  Statute  of  limitations:  Much  that  has  just  been  said  will 
apply  under  this  subdivision.  It  may  frequently  happen  that 
the  statute  of  limitations  would  bar  an  action  in  tort  where  it 
would  not  in  contract,  or  an  action  brought  for  the  recovery 
of  specific  property  where  it  would  not  an  implied  assump&it 

1  Bennett  v.  Bennett,  116  N.  Y.  584;  representative  of  the  deceased  was 

Warren  v.  Warren,  89  Mich.  123,  14  allowed  to  invoke  the  doctrine  of 

L.  R.  A.  545.  privity. 

2Frazier  v.  Ga.  etc.  Co.,  101  Ga.  70;  4  Union  Pac.  Ry.  Co.  v.  Kelley,  4 

Cregan  v.  Railroad  Co.,  75  N.  Y.  195;  Colo.  App.  325,  35  Pac.  R.  923. 

Id.,  83  N.  Y.  595.  s  40  S.  C.  393. 

3  It  is  interesting  to  note  that  the  6  Supra,  p.  40,  note  3. 


§  51.]  ELECTION   OF   KEMEDIES.  93 

for  its  value.  It  will  be  noticed  that  in  some  jurisdictions  the 
form  of  the  statute  of  limitations  is  against  particular  forms  of 
action,  while  in  other  jurisdictions  the  statute  limits  the  time 
for  bringing  action  in  relation  to  the  cause  of  action.1 

(d)  Set-off,  recoupment,  etc.:  The  existence  or  non-existence 
of  some  claim  for  damages  by  the  proposed  defendant  which 
he  might  set  up  by  way  of  recoupment,  set-off  or  counter-claim 
might  influence  the  pleader  in  the  form  of  action  which  he 
would  adopt,  or  at  least  deter  him  from  bringing  his  action ; 
for  ordinarily  a  plaintiff  could  not  avoid  a  set-off  by  bringing 
his  suit  in  tort  for  a  matter  arising  in   contract;  but  a  tort- 
feasor  would  have  no  right  to  insist  that,  simply  because  the 
plaintiff  had  a  right  to  bring  his  action  upon  contract,  he  might 
therefore  set  off  any  account  he  had  against  the  plaintiff.2 

(e)  The  nature  and  amount  of  damages  which  may  be  recov- 
ered under  one  form  of  action  rather  than  another  is  perhaps 
the  most  usual  motive  for  considering  what  form  of  action  is 
best  to  adopt,  and  this  does  not  always  depend  upon  a  mere 
election  between  the  forms  of  action  ex  contractu  or  ex  delicto, 
but  involves  another  element,  as  to  whether  a  certain  action 
shall  be  brought  which  at  common  law  would  be  in  form  tres- 
pass de  l)(ynis  asportatis  or  trespass  quare  clausum  fregit,  or  a 
choice  of  two  actions  which  might  both  be  in  contract  or  in 
tort. 

Perhaps  the  most  difficult  phase  in  which  this  question  arises 
is  that  presented  when  a  passenger  sues  a  carrier  for  injuries 
sustained  by  the  passenger  by  reason  of  the  negligence  of  the 
common  carrier  which  has  contracted  to  carry  him  safely  to 
his  destination.  In  such  a  case,  which  is  but  the  application 
of  a  principle  applying  to  many  other  cases,  by  suing  in  tort 
for  the  negligence,  a  plaintiff  is  allowed  to  recover  other  and 
different  damages  than  he  might  recover  if  the  action  were 
brought  for  a  breach  of  contract.  For  instance,  a  recovery  in 
tort  might  include  more  remote  and  consequential  damages, 
and  there  might  exist  grounds  for  the  recovery  of  punitive  or 
exemplary  damages.  There  has  not  been  an  entire  unanimity 
of  opinion  and  decision  as  to  the  right  in  such  cases  to  assume 
.the  form  of  action  ex  delicto.  Probably  the  leading  American 

1  Carroll  v.  Green,  93  U.  S.  509.  2  Norden  v.  Jones,  33  Wis.  600. 


94:  ELECTION    OF   REMEDIES.  [§  51. 

case  in  which  the  right  of  election  is  allowed  is  the  case  of 
Brown  v.  0.,  M.  &  St.  P.  Ry.  Co.,1  in  which  case  the  doctrine 
is  elaborately  discussed,  and  the  rule  which  is  adhered  to  in 
most  of  the  states  established.2  Substantially  the  came  state 
of  facts  involved  in  the  Wisconsin  case  was  held  by  the  English 
court  not  to  allow  a  suit  to  be  brought  upon  tort,  but  such  a 
suit  was  held  to  be  in  contract.3  The  English  doctrine  was 
adopted  by  the  supreme  court  of  Colorado.4 

One  whose  goods  are  unlawfully  taken  has  various  courses 
open  to  him.  He  may  sue  in  trespass  for  the  unlawful  taking 
or  may  replevin  the  goods,  or  may  sue  for  their  value,  as  we 
noticed  in  the  case  of  Terry  v.  Munger; 5  or,  if  the  property 
had  been  converted  from  the  original  form  in  which  it  was 
taken,  the  plaintiff  might  still  replevin  it  in  its  new  form, 
although  its  value  had  been  increased  by  reason  of  labor  be- 
stowed upon  it.6 

Upon  a  like  principle,  one  whose  trees  or  crops  have  been 
destroyed  by  the  negligence  or  trespass  of  another  may  bring 
an  action  in  the  form  of  trespass  de  bonis  or  assumpsit  for  the 
value  of  the  property  destroyed,  or  he  may  maintain  an  action 
for  injury  to  the  real  estate,  in  which  forms  of  action  the 
measure  of  damages  will  be  different.7  Or  where  ore  or  coal 
has  been  taken  from  the  ground,  the  owner  may  exercise  the 
same  election,8  or  he  may,  in  such  cases,  bring  an  action  of 
trover.9 

Where  a  contract  for  services,  as  a  laborer,  contractor,  etc., 
is  broken,  there  are  generally  several  remedies  open  to  the 

1 54  Wis.  343,  41  Am.  R  41.  covered  a  tort  et  damages,  i  e.  as  in 

2  See  G,  H.  &  I.  Ry.  Co.  v.  Eaton,  94  tort.    Grabbers  Hist.  Eng.  Law,  291 ; 
Ind.  473,  48  Am.  R  179;  Evans  v.  St.  1  Spence  Eq.  24a    See  "Assumpsit." 
L.,  I.  M.  &  S.  Ry.  Co.,  11  Mo.  App.  « Pullman    P.  C.  Cc.  v.  Barker,  4 
463;  Pittsburgh  &  C.  Ry.  Co.  v.  Rey-  Colo.  344,  34  Am.  R.  89.    See  also  1 
nolds,  55  Ohio  St.  370.  Suth.  on  Damages  (3d  ed.),  72. 

3  Hobbs  v.  London  &  S.  W.  Ry.  Co.,  5 121  N.  Y.  162;  ante,  §  46. 

L.  R.  10  Q.  B.  D.  111.    This  is  the        6  Davis  v.  Easley,  13111.  192;  Baker 

more  peculiar  from  the  fact  that  one  v.  Wheeler,  8  Wend.  505,  24  Am.  Dec. 

of  the  earliest  recorded  actions  on  66;  Harms  v.  Stier,  51  111.  App.  234 
the  case  was  where  a  ferryman  had       7  Bailey  v.  C.,  M.  &  St.  P.  Ry.  Co., 

undertaken  to  carry  the  plaintiff's  3  S.  Dak.  531, 19  L.  R.  A.  653. 
horse  over  the  Humber  river,  and  by       8  Omaha,  etc.  Co.  v.  Tabor,  13  Colo, 

overloading  the  boat  the  horse  was  41,  5  L.  R.  A.  236. 
lost  and  the  plaintiff  sued  and  re-        9Id. 


§  51.]  ELECTION   OF   KEMEDIES.  95 

plaintiff.  He  may  bring  an  action  in  assumpsit  upon  a  quan- 
tum meruit  for  the  services  performed,  or  an  action  for  the 
breach  of  the  contract  and  damages  may  be  brought;  or,  in 
case  of  a  wrongful  discharge,  he  has  the  option  to  wait  until 
the  period  contemplated  by  the  contract  for  the  completion  of 
the  work  had  expired,  and  then  sue  for  the  contract  price ; l  but 
an  action  of  special  assumpsit  upon  the  contract  is  inconsistent 
with  one  upon  the  quantum  meruit  or  valebant? 

So,  also,  for  another  and  entirely  different  character  of  in- 
jury, the  plaintiff  might  sue  in  an  action  of  trespass-  on  the  case 
for  seduction  and  recover  for  the  loss  of  the  services,  or  he 
might  bring  an  action  of  trespass  quare  clausum  fregit  with  an 
allegation  of  alia  enormia  (and  other  wrongs  then  and  there 
did),  or  trespass  vi  et  armis,  and  recover  for  the  same  offense 
different  measures  of  damages.3  Examples  might  be  multi- 
plied, but  these  will  be  sufficient  to  illustrate  the  principles, 
and  will  enable  the  student  to  readily  apply  these  principles  to 
other  cases.  The  subject  will  receive  further  treatment  and 
illustration  in  the  pages  of  the  text  and  notes  thereto  under  the 
discussion  of  the  forms  of  action. 

(f)  The  nature  and  extent  of  the  remedy  may  influence  a  choice 
of  the  form  of  action,  as  in  most  of  the  states  a  capias  ad 
respondendum  may  issue  as  process  in  cases  of  fraud,  or  in  form 
ex  delicto  when  such  a  remedy  Avould  not  be  allowed  in  an  ac- 
tion ex  contractu.  So  in  the  action  of  account,  wherever  that 
action  is  in  use,  it  is  usual  to  compel  the  appearance  of  the  de- 
fendant, and  his  obedience  to  the  order  to  account,  by  attaching 
his  person.4 

That  the  common-law  principles  in  regard  to  the  election  of 
remedies  are  of  universal  application  and  equally  as  impor- 
tant under  the  codes  as  under  the  common-law  procedure  will 
appear  from  the  cases  cited,  but  the  necessity  in  code  practice 
of  observing  these  forms  and  fictions,  and  the  distinctions  which 

iKeedy  v.  Long,  71  Md.  385,  5  L.  Woolsey  v.  Ellenville,  69  Hun,  489; 

R.  A.  759;  Knutson  v.  Knapp,  35  Wis.  Distley  v.  Dabney,  3  Wash.  200. 

86;  Hochsterv.DelaTour,2EL&BL  » Baggie  v.  Illsley,  127  Mass.  191; 

678;  Roehm  v.  Horst,  178  U.  S.  1;  White  v.  Murtland,  71  III  280. 

Andrews'  Am.  Law,  p.  859.  4 1  Paine  &  Duer's  Pr.  2;  1  Starr  & 

2 Id.;  Long  v.  Doxey,  50  Ind.  385;  Curtis,  III  Stat  188;  1  Burrill's  Pr.  23; 

Richardson  v.  Coffman,  87  Iowa,  121;  1  Cooley's  Black.  (4th  ed.)  *162. 


96  ELECTION   OF   REMEDIES.  [§  51. 

existed  between  the  different  forms  of  action  under  the  com- 
mon law,  will  be  even  more  apparent  by  an  examination  of 
the  discussion  of  this  doctrine  of  election  in  any  of  the  many 
works  upon  code  procedure.1 

The  election  is  indicated  under  the  common  law  by  the  form 
of  action  chosen;  but  under  the  code,  while  it  may  be  indi- 
cated, there  is  no  criterion  supplied  by  the  rules  of  pleading, 
and  it  is  left  to  be  spelled  out  of  the  complaint  by  the  court  on 
the  trial.2 

i  Pom.  Code  Eem.  (2d  ed.),  §§  558-567.  2  Id. 


SYSTEM  OF  PLEADING 

FOLLOWED  IN 

THE  NATIONAL  COURTS. 


"  The  Constitution  of  the  United  States  and  the  acts  of  Con- 
gress recognize  and  establish  the  distinction  between  law  and 
equity.  The  remedies  in  the  courts  of  the  United  States  are 
at  common  law  or  in  equity,  not  according  to  the  practice  of 
State  courts,  but  according  to  the  principles  of  common  law 
and  equity,  as  distinguished  and  defined  in  that  country  from 
which  we  derive  our  knowledge  of  these  principles.  'And 
although  the  forms  of  proceedings  and  practice  in  the  State 
courts  shall  have  been  adopted  in  the  Circuit  Courts  of  the 
United  States,  yet  the  adoption  of  the  State  practice  must  not 
be  understood  as  confounding  the  principles  of  law  and  equity, 
nor  as  authorizing  legal  and  equitable  claims  to  be  blended 
together  in  one  suit.' "  Thompson  v.  Kail  way  Co.,  6  Wall.  137. 

7 


SYNOPTICAL  OUTLINE 

OF  THE 

PKOCEEDmGS  IN  A.~N  ACTION. 


1.  Prrocipe  (p.  108). 

2.  Original  writ  (p.  108). 

8.  Judicial  process 
(p.  143). 


4.  Appearance  (p.  146). 


1.  Personal  summons  (p.  145). 

2.  Capias  ad  respondendum  (p.  145). 
8.  Constructive  notice. 

4.  Attachment  of  property. 

1.  In  person  (p.  149). 

2.  By  atttorney  (p.  150). 

1.  Declaration  or  complaint  (p.  152). 

2.  Demurrertop.irr.lSS).!1-  General 

(2.  Special. 


6.  Pleadings  (p.  150). 


198>' 


3.  Pleas  (p.  176).    Order  and  character  of  (p.  178). 

4.  Oyer  of  the  writ  (p.  186). 

5.  Joinder  in  demurrer  (p.  193). 

6.  Replication  (p.  196). 

7.  Rejoinder. 

8.  Amendments  (p.  211). 

9.  Motion  to  strike  out  pleadings  (p.  251). 
6.  Arriving  at  issue  (pp.  191, 192). 


7.  Trial  (p.  215). 


1.  Of  fact 


j  1.  By  jury  (pp.  215-217). 
I  2.  By  the  court  (p.  217). 


2.  Of  law,  by  court  (p.  215). 

3.  Other  modes  of  (p.  233). 


4  Incidents. 


8.  Verdict  (p.  221). 


1.  General  (p.  224). 

2.  Special  (p.  225). 

I  8.  Special  findings  (p.  226). 
9.  New  trial  (p.  228). 

10.  Arrest  of  judgment  (p.  230). 

11.  Judgment  non  obstante  (p.  231). 

12.  Repleader  (pp.  231,  232). 

13.  Venire  facias  (p.  233). 

'  1.  On  plea  in  abatement  (p.  236). 

2.  By  default  (p.  240).  J  Interlocutory. 

I  Final. 
.  8.  On  nonsuit  (pp.  240,  384,  note  1). 


f  1.  Demand  of  view  (p.  200). 
2.  Voucher  of  warranty  (p.  202). 
8.  Oyer  and  profert  (p.  203). 

4.  Imparlance  (p.  206). 

5.  Recording  up  the  issue  (pp.  209-214). 

6.  Withdrawing  a  juror  (p.  385). 

7.  Objections,  exceptions  and  bill  of 

exceptions  (p.  222). 

8.  Demurrer  to  evidence,  motion  to 

exclude  (p.  224). 
.  9.  Directing  a  verdict  (p.  385). 


14.  Judgment  (page  236 
et  seq.). 


15.  Execution  (p.  245). 

16.  Appeal  and  writ  of  error  (p.  246  et  seq.). 

17.  Error  coram  nobis  (p.  248). 

18.  Audita  querela  (p.  249). 


SYNOPTICAL  OUTLINE  OF  THE  PROCEEDINGS  IN  AN  ACTION— Con  tinned. 
f 


1.  Dilatory. 


2.   Peremptory 
or  in  bar 
(p.  188). 


'  1.  To  the  jurisdiction  (p.  179). 
2.  In  suspension  (p.  180). 


1.  To  person  of 
plaintiff  (pp. 
180, 184). 


3.  In  abatement 
(pp.  181-183).  ' 


2.  To  person  of 
defendant. 


1.  That  he  is  fictitious. 

2.  That  he  is  an  alien  enemy. 

3.  That  he  is  dead. 

4.  That  he  is  misnamed. 

5.  That  he  is  under  disability 

to  sue  in  form  adopted. 

6.  Misjoinder  or  non- joinder. 

1.  Disability  to  sue. 

2.  Misjoinder  or  non- joinder. 

3.  Privity. 


3.  To  the  declaration  or  count  fp.  184). 


4.  To   the   writ 
(PD.  181-184). 


1.  Traverse. 

2.  In  confession  and  avoidance. 


1.  Variance. 

2.  Autre  action  pendant. 

3.  Suit  prematurely  brought. 


(1.  Puts  darrein  continuance  (p.  198). 
2.  In  estoppel  (p.  326). 
8.  Res  adjudicata  (p.  479). 
4.  New  assignment  (p.  327). 
NOTE.— For  the  order  hi  which  these  pleas  are  to  be  pleaded  see  page  178. 


SYNOPTICAL  OUTLINE  OF  LEGAL  ACTIONS. 


* 

1.  Involving  possession  simply.* 

2.  Involving  [ 

possession  I  Forcible  entry  and  detainer  (p.  114). 

Real    and 

and   dam-  j  Equitable  ejectment  in  Pennsylvania^ 
ages. 

mixed 

f  (1)  Waste  (p.  117). 

(pp.  105-6). 

3.  J  n  v  o  1  v  i  n  g      (2)  Writ  of  entry  (p.  118). 

possession,  \  (3)  Trespass  to  try  title  (p.  120). 

title      and 

(4)  Writ  of  dower  (p.  113). 

damages. 

(5)  Ejectment  (p.  139). 

fa. 

In  the  debet. 

' 

(1)  Debt     I  b. 

[n  the  detinet. 

(p.  122).    1  c.  Penal  actions   on  statutes    - 

1.  Actions    ex 

I 

and  ordinances.                 \ 

PRIVATE 
ADVER- 

contractu 
(p.  106). 

(2)  Covenant  (p.  126).                                    f 
(3)  Account  (p.  124). 
(4)  Assumpsit     (  a.  General. 

SARY  AC- 

(p. 133). 

(  b.  Special. 

TIONS     IN 

P  E  R8O- 

(1)  Detinue  (p.  126). 

i 

:a.  Vi  et  armis. 

NAM. 

(2)  Trespass 

b.  De  bonis  asportatis. 

(p.  127). 

c.  Quare  clausum  fregit. 

Personal 

'  a.  Trover  (p.  135). 

(p.  106). 

b.  Libel  (p.  166). 

2.  Actions   ex 

c.  Slander  (p.  166). 

delicto 
(p.  106). 

(3)  Trespass 
on  the  H 

d.  Malicious  prosecution 
(p.  169,  note). 
All  actions  for  the  re- 

case 

dress  of  a  personal 

(p.  181). 

wrong     occasioned 
by  non-feasance  or 

misfeasance    where 

force     is     not    the 

ground  or  gist  of  the 

1           action  (p.  131). 

(4)  Replevin 

1a.  In  cepit. 

(p.  138).     • 

b.  In  detinet. 

PROCEED-  t 

INGS  IN  \   Attachment 

SPECIAL 
PROCEED- 
ING. 


Scire  facias  to  foreclose  mortgage. 

Partition,  under  statutes. 

Condemnation  proceedings,  under  eminent  domain. 
Special  assessment  proceedings  for  public  improvements. 
Probate  proceedings. 
.  Proceedings  to  protect  persons  non  compos  mentis. 


PUBLIC 

CrvTL 

ACTIONS. 


MARITIME 

CAUSES. 


Mandamus. 
Quo  warranto. 
Scire  facias. 
Prohibition.^ 
Certiorari.% 
Habeas  corpus,  t 

The  jurisdiction  In  admiralty  Is  exclusively  in  the  federal  courts,  and  is  in 
form  a  proceeding  against  the  vessel,  but  is  to  all  intents  and  purposes 
adversary  and  not  exparte.l 


*  Such  an  action  seems  to  have  survived  the  code — that  is,  an  action  the  effect  of  which 
was  to  destroy  the  defendant's  tenure  and  restore  the  plaintiff  to  possession  without  a  judg- 
ment for  damages.    Van  Rensselaer  v.  Wright,  121  N.  Y.  626. 
.  t  German  Am.  T.  &  T.  Co.  v.  Shallcross,  147  Pa.  St.  485. 

J  These  each  have  a  function  as  an  appellate  process  as  well  as  an  original  action, 

I  Desty's  Fed.  Pro.  (9th  ed.),  sec.  2,  p.  27  et  seq. 


CHAPTER  Y. 


CAUSES  OF  ACTION,  FORMS  OF  ACTION,  AND  PROCEEDINGS  IN 

AN  ACTION. 

§  52.  [PRIMARY  RULE  OF  PROCEDURE  :  Parties  must  proceed 
upon  a  definite  theory  of  action  or  defense,  and  must  adhere  to 
the  one  first  chosen  until  allowed  oy  the  court  to  change  under  the 
\rulesfor  amendment.1  This  is  the  fundamental  idea  of  proced- 
ure under  all  systems  in  vogue  in  the  United  States.  Its  ex- 
pression under  the  common-law  system  was  somewhat  different, 
but  the  substance  was  identical.2  The  common-law  rules  re- 


i  Phillips'  Code  PL,  §  202.  See 
Arms  Co.  v.  Railway  Co.,  Appendix, 
post.  "  Pleading  and  a  distinct  issue 
are  essential  in  every  system  of  juris- 
prudence, and  there  can  be  no  or- 
derly administration  of  justice  with- 
out them.  If  a  party  can  allege  one 
cause  of  action  and  then  recover  upon 
another,  his  complaint  will  serve  no 
useful  purpose,  but  rather  to  ensnare 
and  mislead  his  adversary."  Romeyn 
v.  Sickles,  108  N.  Y.  650;  Supervisors 
v.  Decker,  80  Wis.  624 

(a)  Code  Rule. — Mtna,  Power  Co.  v. 
Hildebrand,  137  Ind.  462;   Logans- 
port  v.  Uhl,  99  Ind.  531,  50  Am,  R.  99; 
Welsbeck  v.  Glass,  46  Mo.  App.  209. 

(b)  Common  Law. — Wilson  v.  John- 
son (N.  J.),  29  AtL  R.  419;  T.,  W.  & 
W.  Ry.  Co.  v.  McLaughlin,  63  I1L  389; 
Longyear  v.  Minnesota  L.  Co.,  108 
Mich.  645.    In  Smith  v.  Rumsey,  33 
Mich.  144,  it  was  said:  "The  proposi- 
tion that  the  court  is  bound  to  ad- 
judge according  to  the  case  shown 
and  issues  raised  by  the  pleadings  is 
so  evident,  andhas  so  repeatedly  been 
expounded  and  applied  in  this  state, 
that  anything  beyond  a  reference  to 
it    would    be   scarcely   excusable." 
Reed  v.  Jourdan,  109  Mich,  128.   The 


decree  must  conform  to  the  claims 
in  the  pleading.  Id. 

(c)  Equity. — Jeffries  v.  Robbing,  167 
III  375;  Ogden  v.  Moore,  95  Mich.  290. 
It  is  sometimes  said  that  the  ground 
of  action  cannot  be  changed,  but 
this  must  be  taken  in  a  qualified 
sense.  The  rule  only  requires  that  the 
original  cause  be  adhered  to.  Strang 
v.  Judge,  108  Mich.  229;  Smith  v. 
Missouri  Pao.  Ry.  Co.,  56  Ma  458; 
Insurance  Co.  v.  Judge,  77  Mich.  231. 
The  rule  in  chancery  cases  is  that, 
beside  answering  the  complainant's 
case  as  made  by  the  bill,  the  defend- 
ant must  state  to  the  court  in  his  an- 
swer all  the  circumstances  of  which 
he  intends  to  avail  himself  by  way 
of  defense;  for  it  is  a  rule  that  the 
defendant  is  bound  to  apprise  the 
complainant  by  his  answer  of  the 
nature  of  the  case  he  intends  to  set 
up,  and  that  he  cannot  avail  himself 
of  any  matter  which  is  not  stated 
in  his  answer,  even  though  it  should 
appear  in  his  evidence.  Reed  v. 
Jourdan,  109  Mich.  128;  1  Barb.  Cb, 
Prac.  137. 

2  The  late  Austin  Abbott,  in  an 
article  commenting  on  the  case  of 
U.  P.  Ry.  Co.  v.  Wyler,  158  U.  S.  285, 


98  CAUSES   AND   FOKMS   OF    ACTION.  [§  52. 

quire  that  the  declaration  shall  conform  to  the  writ,  and  will 
not  allow  a  departure  in  theory  at  any  subsequent  stage  by 
either  party.1 

Judge  Phillips  states  that  under  the  codes  each  cause  of  ac- 
tion must  be  separately  stated,  these  separate  statements  being 
called  by  the  common-law  pleaders  counts,  in  some  states  par- 
agraphs; but  are  more  properly  designated  causes  of  action.2 

A  single  count  or  complaint  may  not,  under  any  form  of 
procedure,  be  so  framed  as  to  include  a  double  or  treble  or  any 
number  of  aspects  reciting  at  large  the  incidental  facts  of  the 
transaction,  without  indicating  the  particular  cause  of  action 
intended  to  be  relied  upon,  in  order  to  suit  the  exigencies  of  the 
plaintiff's  case  as  they  may  arise  when  the  proofs  are  adduced 
on  the  trial.3  Such  is  not  the  theory  of  chancery  pleading  or 
code  pleading,  and  it  is  needless  to  say  such  was  not  the  rule 
of  the  common  law,4  except  as  relaxed  in  the  one  form  of  ac- 
tion, viz.,  the  money  count  of  assumpsit.  It  has  been  repeat- 
edly held  by  the  courts  in  the  code  states  that  the  inherent 
and  essential  differences  and  peculiar  properties  of  actions 
have  not  been  destroyed,  and  from  their  nature  cannot  be. 
These  distinctions  continuing,  they  must  be  regarded  by  coun- 
sel and  courts  now  as  formerly,  and  under  the  reformed  pro- 
stated  quite  justly  that  under  the  allowed  in  regard  to  amendment; 
common-law  procedure  the  theory  but  even  in  those  states  it  is  held 
relied  upon  is  indicated  by  naming  that  what  constitutes  a  departure  in 
the  form  of  action,  and  he  adds  that  an  amended  pleading  is  nevertheless 
the  code  has  made  more  confusion  in  to  be  determined  by  the  rules  of  com- 
this  matter  than  it  has  cured.  2  Uni-  mon  law,  which  thus  furnish  the 
versity  Law  Rev.,  No.  8,  p.  269.  Penn-  test  for  ascertaining  whether  a  given 
sylvania  rule:  "  Accuracy  and  tech-  amendment  presents  a  new  cause  of 
nical  precision  have  no  terrors  except  action,  even  although  it  be  permis- 
for  the  careless  and  the  incompetent,  sible  to  advance  such  new  cause,  by 
and  the  act  of  1887  was  not  intended  way  of  an  amendment."  U.  P.  Ey. 
to  do  away  with  them.  As  to  all  Co.  v.  Wyler,  158  U.  S.  285. 
matters  of  substance,  completeness,  2  Phillips'  Code  PL,  §  202. 
accuracy  and  precision  are  as  neces-  3  This  was  the  object  of  the  com- 
sary  now  to  a  statement  as  they  were  mon  counts,  and  was  a  departure 
before  to  a  declaration  in  the  settled  from  the  theory  of  common-law 
and  time-honored  forms."  Fritz  v.  pleading. 
Hathaway,  135  Pa.  St.  280.  4  Supervisors  v.  Decker,  30  Wis.  624; 

!See  "Departure."    "In  many  of    Phillips'  Code  PL,  §  202;  post,  "Sev- 
the  states  which  have  adopted  the    eral  Counts." 
code  system  great  latitude  has  been 


§  52.]  PROCEEDINGS    IN   AN   ACTION.  99 

cedure  it  is  quite  as  essential  that  the  complaint  indicate  the 
character  of  the  cause  of  action.1 

COMMON-LAW  RULE:  The  declaration  must  ~be  conformable  to 
the  original  writes)2 — This  is  a  rule  of  high  antiquity,  being 
laid  down  by  Bracton,  (f)  who  wrote  in  the  reign  of  Henry  III., 
a  period  at  which  the  system  of  pleading  was  in  a  very  rude 
and  imperfect  state.  It  may  be  exemplified  as  follows:  In 
detinue,  where  the  writ  stated  the  value  of  the  goods  which 
were  the  subject  of  action  to  be  20Z.,  and  the  declaration  al- 
leged 4:01.,  the  variance  was,  in  an  old  case,  considered  as  a 
ground  for  reversing  the  judgment  upon  writ  of  error,  (u)  And 
in  trespass,  where  the  writ  charged  the  defendant  with  break- 
ing the  close  of  the  plaintiff,  and  the  declaration  with  breaking 
his  closes,  the  decision  was  the  same,  (a?) 

The  rule  is  to  be  taken,  however,  subject  to  this  qualification : 
that  the  declaration  in  general  may  and  does  so  far  vary  from 
the  writ  that  it  states  the  cause  of  action  more  specially,  (y) 
This  the  reader  may  see  exemplified  in  the  specimens  of  writs 
and  declarations  given  in  the  first  chapter,  though  it  is  more 
observable  with  respect  to  the  writs  of  debt  and  covenant,  etc., 
which  are  in  a  general  form,  than  the  writs  of  a  special  kind, 
such  as  trespass  and  trespass  on  the  case. 

Though  it  has  been  thought  desirable  to  notice  this  rule,  it 
is  at  the  same  time  to  be  observed  that  it  has  lost  much  of  its 
practical  importance,  as  it  can  rarely  now  be  enforced.  For, 
if  the  declaration  varied  from  the  original,  the  only  modes  of 
objecting  to  the  variance  (unless  the  fault  happened  to  appear 
by  the  recital  in  the  commencement  of  the  declaration)  were 
by  plea  in  abatement  or  by  writ  of  error.  (3)  But  by  a  change 

(s)  Com.  Dig.,  Pleader  (C.  13);  Bac.  Ab.,  Pleas,  etc.  (B.),  4;  Co.  Litt.  303  a;  Bract.  431  a, 
435  b. 

(t)  Bract.,  ubi  supra. 

(u)  Young  v.  Watson,  Cro.  Eliz.  308. 

(a;)  Edward  v.  Watkin,  id.  185. 

(y)  Com.  Dig.,  Abatement  (G.  8);  Pleader  (0. 15);  Co.  Litt.  303  b. 

(z)  1  Saund.  318,  n.  3. 

Supervisors  vs.  Decker,  30  Wis.  When  a  writ  of  attachment  pro- 

624;  Phillips'  Code  PL,  §  202.  ceeds  upon  one  theory  the  declara- 

2  Dicey  says  that  when  a  joinder  is  tion  or  complaint  must  conform  to 

allowed  the  reason  for  the  rule  the  same.  Wright  v.  Snedecor,  46 

ceases,  and  it  amounts  to  abolishing  Ala.  92;  Hambrick  v.  Wilkins,  65 

the  form.  Dicey  on  Parties,  p.  64.  Miss.  18,  7  Am.  St.  R  631. 


CAUSES    AND   FORMS    OF   ACTION.  [§  53. 

of  practice  explained  in  the  first  chapter,  a  plea  in  abatement 
in  respect  of  such  variance  can  now  no  longer  be  pleaded;  (a) 
and,  by  the  statutes  of  jeofails  and  amendments,  the  objection 
cannot  now  be  taken  by  way  of  writ  of  error  after  verdict; 
nor,  if  the  variance  be  in  a  matter  of  form  only,  can  it  be  taken 
after  judgment  by  confession,  nil  dicit,  or  non  sum  informa- 
tus.  (b)  l  However,  the  effect  of  the  rule  is  still  felt  in  plead- 
ing; for  its  long  and  ancient  observance  had  fixed  the  frame 
and  language  of  the  declaration  in  conformity  with  the  original 
writ  in  each  form  of  action;  and,  by  a  rule  which  has  already 
been  considered,  to  depart  from  the  known  and  established 
tenor  of  pleadings  is  a  fault  ;(<?)  consequently  a  declaration 
must  still  be  framed  in  conformity  with  the  language  of  the 
original  writ  appropriate  to  the  form  of  action,  as  much  as 
when  a  variance  from  the  writ  actually  sued  out  might  have 
become  the  subject  of 'a  plea  in  abatement. 

In  proceedings  ~by  lill?  the  rule  in  question  is  of  course  inap- 
plicable; yet,  even  in  these,  the  declaration  pursues  the  same 
forms  of  expression  as  if  founded  on  an  original  writ  in  the 
same  form  of  action.  Thus,  the  declaration  in  debt  by  bill  is 
worded  exactly  in  the  same  manner  as  the  declaration  in  debt 
by  original,  (d)  the  formal  commencement  only  excepted ;  and 
the  case  is  the  same  in  all  other  actions. 

§  53.  The  principal  objects  of  pleading. —  In  order  that  we 
may  the  better  understand  the  utility  of  distinguishing  and 
classifying  the  various  causes  and  forms  of  action  and  the 
necessity  for  some  settled  system  of  allegation,  it  will  be  well 
in  the  outset  to  indicate  the  principal  objects  of  pleading. 
They  are :  (a)  To  frame  distinct  issues.3    By  the  process  of  re- 
Co)  Infra,  p.  186- 
(6)  5  Geo.  1,  ch.  13;  21  Jac.  1,  ch.  13;  4  Ana.,  ch.  16.    See  2  Tidd,  816,  4th  ed. 

(c)  Vide  infra,  p.  443. 

(d)  Vide  infra,  p.  158. 

l  The    modern  rule   now  is   that  ter  is  of  no  practical  importance  be- 
where  the  prcecipe  and  writ  are  in  cause  of  the  liberality  of  the  courts 
one  form  and  the    declaration    or  in  allowing  amendments.    T.,  W.  & 
count  in  another,  a  motion  in  arrest  W.  Ry.  Co.  v.  McLaughlin,  63  III  389; 
will  not  be  sustained;  nor  can  the  Wright  v.  Snedecor,  46  Ala.  631. 
matter  be  taken  advantage  of  in  a  2This  does  not  mean   by  bill  in 
writ  of  error  on  appeal    The  proper  equity.    See  post,  p.  108. 
remedy  in  such  cases  is  by  motion  or  8  Post,  pp.  147, 150;  Quincy  Coal  Co. 
by  plea  in  abatement;  but  the  mat-  v.  Hood,  77  111.  68;   People  ex  rel. 


§  5-i.]  PROCEEDINGS    IN   AN   ACTION.  101 

ducing  the  facts  to  distinct  issues  of  law  and  fact  the  parties 
apprise  the  court  beforehand  of  the  precise  nature  of  the  mat- 
ters in  controversy,  (b)  To  state  upon  the  record  the  facts  con- 
stituting the  subject  and  cause  of  action.  The  utility  of  this 
requirement  consists  not  only  in  indicating,  for  the  purposes  of 
the  trial  then  in  progress,  the  nature  of  the  plaintiff's  demand, 
but  such  a  statement  furnishes  definite  and  indisputable  evi- 
dence on  the  record  roll  of  the  nature  and  identity  of  the  cause 
of  action  which  has  been  tried,  and  thus  furnishes  protection 
against  being  again  vexed  for  the  same  cause  of  action,  a  mat- 
ter once  tried  becoming  res  adjudicates,.1  (c)  To  apprise  the  op- 
posite party  of  the  grounds  of  action  and  defense.2  A  pleading, 
in  whatever  phraseology  it  may  be  couched,  which  definitely 
performs  all  of  these  functions,  is  good  under  any  system  of 
pleading.8 

In  order  to  appreciate  the  utility  of  acquiring  a  proficiency 
in  common-law  pleading,  it  is  necessary  to  understand  the  re- 
lation which  this  art  or  science  bears  to  the  other  branches  of 
the  law,  and  also  to  understand  clearly  why  the  main  object 
of  pleading,  viz.,  the  forming  of  issues,  is  regarded  as  so  im- 
portant in  every  system  of  procedure. 

§  54.  Necessity  for  framing  issues  arose  by  reason  of  the 
peculiar  method  of  adjudicating  contested  matters  between 
litigants,  viz.:  assigning  the  decision  of  questions  of  law  to  the 
judge,  and  the  decision  of  questions  of  fact  to  a  jury.4  This  is 
the  peculiarity  of  the  jury  trial  and  of  the  common-law  pro- 
cedure. This  requires  that  in  some  manner  those  matters 
which  are  properly  termed  questions  of  law  shall  be  separated 
from  those  matters  which  are  questions  of  fact,  and  that  out 
of  the  concrete,  historical  event  which  is  commonly  called  the 
transaction  or  res  gestce,  there  shall  be  formulated  a  distinct 

Benoit  v.  Miller,  15  Mich.  354;  Merkle  affording  any  reasonable  presump- 
v.  Township  of  Bennington,  68  Mich,  tion  or  inference  as  to  the  principal 
133.    The  relevancy  and  admissibil-  fact  or  matter  in  dispute.    Nickerson 
ity  of  evidence  are  determined  en-  v.  Gould,  82  Me.  512. 
tirely  by  the  state  of  the  issue.    The  1  Phillips'  Code  PL,  §  202;  Andrews' 
evidence  must  be  relevant  to  the  Am.  Law,  p.  1109. 
issue  —  that  is,  to  the  facts  put  in  2  Pom.  Code  Rem.  554;  Hartford  v. 
controversy  by  the  pleading.     This  Holmes,  3  Mich.  460;  Merkle  v.  Ben- 
rule  prohibits  the  trial  of  collateral  nington,  supra. 

issues  — of  facts  not  put  in  issue  by  3  Merkle  v.  Bennington,  supra;  Cook 

the   pleadings, —  and    excludes    evi-  v.  Scott,  1  Gilm.  333. 

dence  of  such  as  are  incapable  of  4  Andrews'  Am.  Law,  pp.  1109-1U 


102  CAUSES    AND   FORMS    OF   ACTION.  [§§  55,  56. 

and  certain  controlling  point  or  proposition  agreed  upon  by 
the  parties  as  the  ultimate  and  important  proposition,  whether 
it  be  a  question  of  law  or  a  question  of  fact.  The  arrival  at 
this  point  was  termed  by  the  common-law  lawyers  the  exitus 
or  issue.1  Under  the  ancient  chancery  practice,  and  in  coun- 
tries where  the  jury  trial  was  unknown,  it  was  not  so  essential 
that  the  issue  or  issues  should  be  so  specifically  marked  out 
before  the  case  was  heard,  and  consequently  the  litigants  were 
at  liberty  to  relate  on  the  face  of  their  pleadings  the  whole 
transaction,  without  indicating  what  they  considered  the  mat- 
ter of  prime  importance;  and  it  was  left  for  the  judicial  officer, 
from  these  loose  recitals  and  statements,  to  ascertain  for  him- 
self the  material  facts  and  the  contested  positions.  These  con- 
tested positions  were  in  the  civil  law  and  in  the  very  ancient 
chancery  termed  litis  contestatio.  But  after  the  introduction 
of  the  issue  into  the  chancery,  and  the  requirement  that  every 
bill  in  equity  should  proceed  upon  a  distinct  and  definite 
theory,  there  was  no  other  method  known  in  logic  so  well 
adapted  to  elucidate  the  theory  and  issue  as  the  common-law 
rule  which  requires  the  pleading  of  the  ultimate  facts. 

§  55.  The  utility  of  forms  of  action  consisted  and  consists 
entirely  in  the  fact  that  the  adoption  of  certain  settled  for- 
mula for  the  statement  of  certain  causes  of  action  indicates 
with  certainty  the  theory  of  the  action  or  the  defense,2  and  the 
common-law  forms  of  action  must  of  necessity  correspond  with 
the  modern  statement  of  the  cause  of  action  wherever  the  ele- 
ments of  the  cause  of  action  have  not  been  changed.  The 
dramatic  incidents  or  casual  circumstances  which  surround  or 
accompany  a  transaction  out  of  which  a  cause  or  right  of  ac- 
tion arises  do  not  affect  the  formal  ultimate  statement  of  the 
cause  of  action  in  pleading;  nor  is  it  allowable  under  the  code 
or  the  common  law  to  state  circumstantially  the  transaction 
at  large  without  stating  the  ultimate,  material  facts  which  in- 
dicate the  nature  of  the  cause  of  action.3 

§  56.  Preparation  for  pleading. — It  is  plain,  then,  that  every 
pleader  should,  before  he  undertakes  to  formulate  his  written 
statement,  analyze  the  historical  narrative  containing  the  facts 
out  of  which  the  dispute  arises,  in  several  different  ways,  viz. : 
(a)  distinguish  the  transactions  involved  in  a  legal  and  tech- 

1  Post,  Appendix,  note  10.  'Supervisors  v.  Decker,  30  Wis.  624; 

2  10  Harv.  Law  Rev.  458.  10  Harv.  Law  Rev.  45a 


§§  57-59.]  PROCEEDINGS    IN   AN   ACTION.  103 

nical  sense  from  the  transactions  as  perceived  by  the  layman, 
embracing  all  the  circumstances  at  large  and  which  might  be 
used  as  relevant  testimony  on  the  trial ;  (b)  the  right  of  action 
which  has  arisen ;  (c)  the  particular  cause  or  causes  of  action 
which  his  client  has  the  right  to  pursue;  (d]  the  subject  or  sub- 
jects of  action,  and  (e)  the  grounds  of  suit. 

§  57.  The  art  of  pleading  consists  in  thus  sifting  a  trans- 
action, ascertaining  the  rights  of  the  parties,  and  stating  on 
the  record  in  legal  form  the  material  facts  of  the  claim  or  de- 
fense in  the  way  most  advantageous  to  the  client's  interest. 

§  58.  The  transaction. —  The  importance  of  understanding 
the  first  distinction  pointed  out  cannot,  under  the  reformed 
procedure,  be  overestimated ;  for,  as  we  shall  see  when  speaking 
of  the  joinder  of  causes  of  action,  the  English  procedure  act 
and  the  modern  codes  generally  provide  for  the  joinder  in  one 
complaint  of  causes  of  action  arising  from  the  same  subject  of 
action.1  This  language,  if  given  its  popular  interpretation, 
would  allow  the  joining  of  actions  so  arising,  irrespective  of 
any  incongruity  from  the  diverse  interests  of  the  parties,  and 
consequently  the  English  courts  have  well  said  that  a  writ  of 
summons  is  not  like  an  omnibus,  into  which  any  one  may  get 
as  it  goes  along;  and  Judge  Bo  wen  in  the  same  case  pointed 
out  that  there  was  a  difference  in  the  technical  meaning  of  the 
word  "  transaction "  and  the  same  word  used  in  its  popular 
sense,  as  indicating  all  of  the  evidence  upon  which  a  plaintiff 
might  rely.2 

§  59.  Right  of  action,  cause  of  action,  ground  of  action, 
and  subject  of  action  distinguished. —  In  order  to  compre- 
hend either  the  various  forms  of  actions  which  are  made  vis- 
ible in  the  set  forms  or  breves 3  of  the  common  law,  or  the 
distinct  theories  and  causes  of  action  which  are  recognized 
under  the  reformed  procedure,  it  is  essential  that  a  definite  con- 
ception be  had  of  the  distinction  between  the  "  right  of  action," 
the  "  cause  of  action,"  the  "  grounds  of  action,"  and  the  "  sub- 
ject of  action ; "  for  each  and  all  of  these  expressions  are  used 
in  some  form,  though  perhaps  with  some  varying  meaning, 
under  the  old  common-law  system  and  the  modern  reformed 

1  Winchester  Repeating  Arms  Co.        2  Hannay  v.  Smurthwaite,  69  L.  T. 
v.  N.  Y.  &  N.  H.  R  Co.,  Appendix,    R  677;  post,  Appendix. 
Editor's  Note  B.  3  The  student  should  read  note  2  in 

the  Appendix. 


104:  CAUSES    AND   FORMS    OF   ACTION.  [§  59. 

procedure;  and  while  it  is  not  to  be  expected  that  there  will 
be  found  entire  harmony  in  statement  throughout  the  various 
jurisdictions,  the  following  will  serve  to  give  an  approximately 
accurate  conception  of  the  meaning  of  these  terms:1 

A  right  of  action 2  is  the  expression  used  when  reference  is 
had  to  the  person  who  is  entitled  to  sue  for  and  recover  on  ac- 
count of  some  injury  which  has  taken  place,  and  in  that  sense 
is  another  form  of  referring  to  the  party  in  interest.3  For  ex- 
ample: a  person  who  has  a  good  cause  of  action  may  not  have 
the  right  to  bring  an  action  in  a  particular  place.4 

Tlie  cause  of  action  is  not  infrequently  confused  with  the 
unlawful  conduct  which  gives  rise  to  the  injury,  or  with  what 
might  be  more  properly  termed  the  ground  of  the  action ;  but 
the  cause  of  action  designates  the  nature  of  the  injury,  using 
this  latter  term  in  its  strict  legal  sense  as  distinguished  from 
the  extent  or  nature  of  the  damage.  The  injury,  in  legal  con- 
templation, consists  in  the  violation  of  the  right  of  the  plaint- 
iff and  the  duty  of  the  defendant  in  relation  to  that  right.5 
The  nature  and  extent  of  the  damage  which  may  arise  from 
such  an  injury  may  vary6  without  changing  the  cause  of  ac- 
tion. The  law  regards  the  primary  cause  of  action  rather  than 

1  Because  of  the  loose  manner  in  cause  of  action  which  is  assignable, 
which  our  language  is  used,  it  is  im-  but  no  right  of  action  in  the  juris- 
possible  to  frame  definitions  which  diction.    Lindheim  v.  Sitt,  68  N.  Y.  S. 
will  harmonize  with  all  of  the  ex-  145. 

pressions  to  be  found  in  the  various        5  In  re  Payne's  Appeal,  65  Conn, 

decisions  throughout  our  forty-five  397;  C.,  B.  &  Q.  Ry.  Co.  v.  Jones,  149 

or  fifty  jurisdictions,  and  these  ob-  111.  361;  Swift  &  Co.  v.  Madden,  165 

servations  are  meant  to  be  tentative  III  41 ;  King  v.  C.,  M.  &  St.  P.  Ry. 

and  suggestive  rather  than  positive  Co.  (Minn.),  82  N.  W.  R.  1113,  50  L. 

and  dogmatic   definitions  of  these  R.  A.  161.    See  this  case  for  conflict 

terms.    The  student  and  practitioner  of  opinion. 

must  use  his  judgment  in  the  appli-        6  For  example,  a  negligent  act  may 

cation,  though  it  would  tend  to  uni-  injure  person  and  property.    King 

formity  if  in  time,  by  common  con-  v.  C.,  M.  &  St.  P.  Ry.  Co.,  supra.    Or 

sent,  these  expressions  were  used  to  a  fraudulent  inducing  one  to  marry 

indicate  a  settled  idea.  may  be  followed  by  loss  and  con- 

2  See  Phillips,  Code  PL,  §§  30,  31.  sumption  of  property.    Payne's  Ap- 

3  See  Craft   Refrigerating    Co.  v.  peal,  supra.    The  master  has  a  right 
Quinnipiac  Co.,  63  Conn.  551;  Win-  to  the  services  of  his  servant;  hence, 
Chester  Arms  Co.  v.  N.  Y.  &  N.  H.  under  the  old  law,  a  master,  though 
Ry.   Co.,  stated    in    Andrews'  Am.  untouched,  was  injured  by  an  as- 
Law,  p.  1153.  sault  on  the  servant  resulting  in  dis- 

4  E.  g.,  a  corporation  which  is  re-  ability,  and   this    injury    was   the 
quired  to  perform  some  act  before  it  cause  of  action.    Frazier  v.  Georgia 
will  be  allowed  to  sue  may  have  a  (Ga.),  28  S.  E.  R.  684. 


§  60.]  PROCEEDINGS   IN   AN    ACTION.  105 

the  consequences.  The  fact  that  the  causes  of  action  arise  out 
of  the  same  transaction  is  not  conclusive  on  the  question  of 
identity;1  nor  does  the  fact  that  the  damages  which  follow 
are  inflicted  on  different  subjects,  e.  g.,  a  single  act  may  injure 
one  personally  and  destroy  his  property.2 

The  ground  of  action  has  reference  to  the  act  of  the  offend- 
ing party,  by  means  of  which  the  injury  is  inflicted.3  It  is  the 
unlawful  conduct,  or  conduct  which  might  be,  abstractly  speak- 
ing, lawful,  but  which  is  rendered  unlawful  by  the  character 
of  the  intent  or  object  of  the  act,  this  state  of  mind  being 
termed  in  law  malicious  or  wilful,  and  is  embraced  within  that 
expression  sometimes  used:  the  doing  unlawfully  or  under  un- 
lawful conditions  what  it  might  be  lawful  to  do  under  other 
circumstances.4 

The  subject  of  the  action  is  a  term  sometimes  used  in  the  codes 
or  practice  acts,  and  embraces  at  least  all  that  is  included  within 
the  terms  "  grounds  of  action  "  and  "  cause  of  action,"  and  is  a 
word  almost  as  comprehensive  as  the  word  "  transaction,"  which 
in  the  modern  codes  has  supplanted  to  a  certain  extent  the  term 
res  gestcB,  which  is  used  and  explained  by  common-law  writers 
on  evidence.8] 

§60.  The  classification. —  Actions6  are  divided  into  real, 
personal  and  mixed,  (a) 7  Heal  actions  are  those  brought  for 

(a)  Bract.  101,  b;  3  Cooley's  Black.  (3d  ed.)  117. 

1  Perry  v.  Dickinson,  85  N.  Y.  345.  6  "An  Action,  Actio,onis;f.  an  Action 
In  this  case  a  servant  was  wrong-  Is  a  Right  of  Prosecuting  in  Judgment 
fully  discharged,  and  it  was  held  of  a  thing  which  is  due  unto  any  one. 
that  wages  earned  gave  a  cause  of  It  may  be  well  called  an  Action,  quid 
action  distinct  from  the  damage  for  agitur  de  injuria,  for  it  is  a  corn- 
breach  of  contract.  plaint  of  an  Injury  received.    There 

2  King  v.  C.,  M.  &  St.  P.  Ry.  Co.,  be  two  kinds  of  actions,  one  that 
supra.    For  conflict  of  opinion  see  concerns  Pleas  of   the  Crown,  the 
this  case.  other  that  concerns  Common  Pleas, 

3  Swift  &;  Co.  v.  Foster,  163  111.  50.  which  are  called  Actions  Real,  Ac- 

4  Morgan  v.  Andrews,  107  Mich.  33;  tions  Personal,  and    Actions  Mixt. 
Andrews'  Am.  Law,  p.  845.    The  quo  Co.,  1  Inst.  284,  b." 

animo  constitutes  an  important  ele-  7  The    distinguishing   feature  be- 

ment  in  the  gist  of  the  action.  tween  real  and  personal  actions  was 

5  See  Supervisors  v.  Decker,  30  Wis.  not  simply  that  one  related  to  real 
630;  Craft  Refrigerating  Co.  v.  Quin-  estate  and  the  other  to  things  per- 
nipiac  Brew.  Co.,  63  Conn.  551;  Han-  sonal.     The  real  action  had  for  its 
nay  v.  Smurthwaite,pos£,  Appendix;  sole  object  the  recovery  of  the  pos- 
Winchester  Arms  Co.  v.  N.  Y.  &  N.  H.  session  of  land  or  to  adjudicate  the 
Ry.  Co.,  stated  in  Andrews'  Am.  Law,  title  to  land,  while  all  personal  ac- 
p.  1153.  tions  might  end  merely  in  damages. 


106  CAUSES   AND    FORMS    OF   ACTION.  [§  61. 

specific  recovery  of  lands,  tenements  or  hereditaments;1  per- 
sonal are  those  brought  for  specific  recovery  of  goods  and  chat- 
tels, or  for  damages  or  other  redress,  for  breach  of  contract,  or 
other  injuries,  of  whatever  description,  the  specific  recovery 
of  lands,  tenements  and  hereditaments  only  excepted.  Mixed 
actions  are  such  as  appertain,  in  some  degree,  to  both  the  former 
classes,  and  therefore  are  properly  reducible  to  neither  of  them, 
being  brought  both  for  specific  recovery  of  lands,  tenements  or 
hereditaments,  and  for  damages  for  injury  sustained  in  respect 
of  such  property.  Again,  in  real  actions,  there  is  a  division  be- 
tween those  founded  on  the  possession  and  those  founded  on  the 
absolute  property  or  right,  (b) 

[Personal  actions  are  universally  classified,  with  reference  to 
the  nature  of  the  cause  of  action,  as  actions  ex  contracts  and 
actions  ex  delicto,  the  latter  corresponding  to  the  torts  of  Eng- 
lish and  American  law.  The  former  needs  no  further  men- 
tion than  that  given  in  explaining  the  fiction  of  implied  con- 
tract in  connection  with  the  subject  of  "  Election  of  Kemeclies." 
The  latter  term  is  somewhat  more  difficult  to  grasp. 

§  61.  Tort  defined  —  Actions  ex  delicto  and  ex  contractu 
distinguished. —  It  is  clear  that  before  one  is  able  to  distin- 
guish between  an  action  ex  contractu,  or  upon  contract,  and  ex 
•delicto,  or  on  tort,  he  must  understand  the  essential  elements  of 
each  of  these  causes  of  action  and  their  distinguishing  feature. 
This  distinguishing  feature  is  not  found  in  the  means  of  ac- 
complishing an  injury,  nor  in  the  nature  of  the  harm  or  dam- 
age inflicted,  nor  indeed  is  it  indicated  by  the  presence  or 
absence  of  a  contractual  relation,  because  it  may  be  necessary 
that  a  certain  contractual  relation  exist  between  the  parties  in 

(b)  Earum  quse  sunt  in  rem,  qusedam  proditae  sunt  super  ipsa  possessione,  et  qusedam 
super  ipsaproprietate;  estenimpossessiorei,et  proprietor.    Bract.  103,  a. 

An  action  to  recover  a  specific  chat-  covered  therein;  for  whenever  dam- 

tel  might  be  supposed  to  be  a  real  ages  which  are  pecuniary  recompense 

action  but  for  the  fact  that  in  no  for  the  injury,  and  consequently  a 

case    was   the    defendant    required  personal  thing,  are  recoverable  in  the 

absolutely  to  restore  the  thing,  but  same  action  wherein  the  real  thing 

to  restore  it  or  respond  in  damages  may  be  recovered,  the  action  is  dis- 

for  its  value.    See  1  Reeves'  Hist,  tinguished  by  the  name  of  a  mixed 

Com.  Law  (Finlanson  ed.),  p.  336,  n.  action,  and  therefore  when,  in  the 

See  also  Langdell's    Sum.   Eq.   PL,  real  action,  damages  are  given  by  a 

§  40.  statute,  the  action  immediately  ceases 

1  It  is  the  essence  of  a  real  action  to  be  a  real  one  and  becomes  from 

•that  only   a  real  thing  can  be  re-  that  time  a  mixed  action. 


§  62.]  PROCEEDINGS    IN    AN    ACTION.  107 

order  that  a  particular  course  of  conduct,  e.  g.,  a  degree  of 
care  or  negligence,  be  unlawful.1  The  distinguishing  feature 
of  a  tort  consists  in  the  nature  of  the  obligation  which  is  vio- 
lated. 

A  tort,  in  contemplation  of  English  law,  consists  in  a  viola- 
tion of  a  duty  imposed  by  the  general  law  upon  all  persons 
occupying  the  relation  which  is  involved  in  a  given  transaction 
or  res  gestce-  The  necessitjr  for  distinguishing  beforehand  and 
analyzing  the  facts,  and  out  of  them  selecting  the  theory  of  suit 
preferred  or  best  adapted  to  attain  complete  justice,  consists  in 
the  necessity  of  stating  in  the  narrative  the  material  facts,  and 
these  only,  in  clear  and  distinct  language,  in  order  that  they 
may  notify  the  opposite  party  and  the  court  of  the  nature  of 
the  grounds  and  cause  of  action.  An  illustration  is  found  in  the 
case  of  Donovan  v.  Hartford,  etc.  Ky.  Co.,3  where  the  plaintiff 
sued  for  being  struck  by  a  street-car,  and  alleged  that  he  was 
in  the  street,  about  to  board  the  car  of  the  defendant,  who  was 
then  and  there  a  common  carrier,  but  by  reason  of  the  negligent 
placing  of  a  switch  the  car  suddenly  veered  and  struck  the 
plaintiff.  An  important  consideration  was  whether  the  relation 
of  passenger  and  carrier  existed  at  the  precise  moment,  and,  as 
no  facts  were  alleged  making  the  relation  apparent,  defendant 
moved  to  strike  out  and  eliminate  the  allegation  that  the  de- 
fendant was  a  common  carrier;  for,  unless  the  relation  of  car- 
rier and  passenger  existed,  this  allegation,  although  true,  was 
immaterial,  and  consequently  violated  the  common  law  and 
code  rule  against  surplusage,  that  the  transaction  at  large  shall 
not  be  set  out  in  the  declaration  or  complaint,  but  that  the 
material  facts  shall  be  stated  in  concise  form.  The  clause  was 
stricken  out.] 

§62.  The  superior  courts  of  England. —  There  are  three 
superior  courts  of  the  common  law,  in  each  of  which  actions 
may  be  brought.  These  are  the  king's  bench,  the  common 
pleas,  and  the  exchequer, —  each  consisting,  at  present,  of  four 
judges.  The  original  distribution  of  business  among  them, 
upon  their  first  establishment,  was  as  follows :  The  cognizance 

*  Where  in  an  action  in  tort  a  con-  87  N.  Y.  387;  W.,  St.  L.  &  P.  Ry.  Co. 

tract  is  an  essential  element  in  the  v.  Shacklet,  105  111.  364;  Donovan  v. 

ground  of  action,  it  must  be  proved.  Hartford  Ry.  Co.,  65  Conn.  201,  29  L. 

Castle  v.  Ballard,  23  How.  172.  R.  A.  297 ;  Andrews'  Am.  Law,  p.  1026. 

2  Rich  v.  N.  Y.  C.  &  II.  R.  Ry.  Co.,  3  Go  Conn.  201. 


108  CAUSES    AND   FORMS   OF   ACTION.  [§  63. 

of  crime,  and  of  such,  matters  of  litigation  in  general  as  di- 
rectly concerned  the  crown  (those  relating  to  the  revenue 
excepted),  was  exclusively  appropriate  to  the  court  of  king's 
bench;  civil  suits  between  subject  and  subject  (called  com- 
munia  placita)  to  the  common  pleas;  and  matters  relating  to 
the  royal  revenue,  to  the  exchequer,  (e)  In  course  of  time, 
considerable  violations  of  this  arrangement  took  place,  usur- 
pation on  the  province  of  the  common  pleas  being  made  by 
each  of  the  other  courts.  Of  these  changes  the  general  result 
is  as  follows:  The  king's  bench  has  now  jurisdiction  not  only 
in  those  matters  which  belonged  to  it  by  its  original  constitu- 
tion, but  in  all  personal  actions  whatever.  The  case  is  the  same 
with  the  exchequer;  but  both  these  courts  are  still  excluded 
from  the  cognizance  of  actions  real  and  mixed,  (d)  The  com- 
mon pleas  retains  its  original  province,  and  therefore  enter- 
tains all  actions  whatever  between  subject  and  subject,  whether 
of  the  real,  mixed  or  personal  class. 

§63.  Commencement  of  actions  —  The  original  writ  in 
England.  —  An  action  is  commenced  in  the  king's  bench  or 
common  pleas  either  by  original  writ  or  by  bill;  in  the  ex- 
chequer, by  bill  only.1  Of  these  methods  of  proceeding,  the 


(c)  Introd.  to  Sellon's  Pract.,  sec.  XXIV;  3  Bl.  Com.  44. 

(d)  Hale's  Disc,  of  the  K.  B.  and  C.  P.  (in  Harg.  Law  Tracts),  ch.  IV.    With  respect,  how- 
ever, to  the  king's  bench,  this  author  excepts  the  following  mixed  actions:  Assize,  Ejectio 
Jinnee,  and  Ejectio  custodies. 

iSpence,  Eq.  Jur.  226  and  note.  17  Oreg.  564;  Dwight  v.  Merritt,  18 

In  the  United  States,  as  we  have  Blatch.  305.    But  some  notices  given 

seen,  the  original  writ  has  been  dis-  by  court  officers,  such  as  attorneys, 

carded  (Ferguson  v.  State,  31  N.  J.  L.  administrators    and   receivers,    are 

289),  and  the  first  process  is  usually  treated  as  process.    Nichols  v.  Mitch- 

called  a  precept  or  summons.   Adams  ell,  70  I1L  258.    The  name  is  imma- 

v.  Vose,   1  Gray,   58.    This   should  terial;  the  import  of  the  paper  and  the 

specify  the  court,  the  form  of  action  authority  which  issues  it  determine 

and  writ,  the  names  of  the  parties,  its  character.   Middleton  Co.  v.  Rock 

and  when  returnable,  and  in  case  of  R.   Co.,   19    Fed.   R.  252.    Mere  no- 

an  error  in  the  writ  will  form  the  tices  by  parties  or    attorneys    not 

basis  of  an  amendment.    Thompson  bearing  the  court  seal,  though  issued 

v.  Turner,  22  I1L  389.    All  writs  ex-  by  statutory  authority,  are  not  gen- 

cept  the  final  one  are  properly  judi-  erally  regarded  as  process.  Johnston 

cial  or  mesne  process.    Ferguson  v.  v.  Hamburger,  13  Wis.  175;  Bailey 

State,  31    N.  J.   L.   289;  Arnold  v.  v.  Williams,  6  Oreg.   71;  Gilmer  v. 

Chapman,  13  R  L  586.    To  be  prop-  Bird,  15  Fla.  411.    It  is  sometimes 

erly  denominated  process  it  should  held  that  suit  is  begun  by  the  issu- 

issue  from  some  officer  and  be  tested  ance  of  summons.    Fleming  v.  Pat- 

and  sealed.    Whitney  v.  Blackburn,  terson,  99  N.  C.  404;  Society  v.  Whit- 


§63.] 


PROCEEDINGS   IN   AN   ACTION. 


109 


former  is  the  regular  and  ancient  one ;  and  the  latter  is  in  the 
nature  of  an  exception  to  it.  The  proceeding  by  original  writ 
consequently  claims  the  first  notice. 

An  original  writ  (breve  originate}  is  a  mandatory  letter  is- 
suing out  of  the  court  of  chancery,1  under  the  great  seal,  and 


comb,  2  N.  H.  227;  Whitaker  v. 
Turnbull,  18  N.  J.  L.  172;  Caldwell 
v.  Heitshu,  9  W.  &  S.  51;  Ross  v. 
Luther,  4  Cow.  158,  15  Am.  Dec.  341, 
and  note;  Feazle  v.  Simpson,  1 
Scam.  30;  Schroeder  v.  Insurance 
Co.,  104  111.  71.  Other  courts  hold 
that  the  suit  is  begun  by  the  delivery 
of  the  summons  to  the  officer  to  be 
served.  Montague  v.  Stets,  37  S.  C. 
200,  34  Am.  St.  R.  736;  Johnson  v. 
Farwell,  7  Greenl.  370,  22  Am.  Dec. 
203;  Cross  v.  Barber,  16  R.  I.  266; 
Cox  v.  Cooper,  X3  Ala.  256;  Elliott  v. 
Stevens,  10  Iowa,  418;  Badger  v. 
Phinney,  15  Mass.  357.  Others  that 
the  suit  is  not  begun  till  service  is 
had.  Smith  v.  Hurd,  50  Minn.  506, 
36  Am.  St.  R.  661;  Gates  v.  Bushnell, 
9  Conn.  530;  Kirby  v.  Jackson,  42 
Vt.  552;  Haynes  v.  Onderdonk,  2 
Hun,  619;  Porter  v.  Vandercook,  11 
Wis.  70:  McDaniels  v.  Reed,  17  Vt. 
674.  But  in  Vermont,  to  prevent  the 
barring  of  a  claim  by  the  statute  of 
limitations,  the  taking  out  the  writ 
with  intention  of  having  it  served  is 
the  commencement  of  suit.  Day  v. 
Lamb,  7  Vt.  426. 

1  An  understanding  of  the  nature 
and  office  of  the  original  writ  as 
used  in  England  is  essential  to  a 
proper  understanding  of  some  of  the 
older  rules  of  pleading,  e.  g.,  con- 
forming to  the  writ,  and  a  seemingly 
unnecessary  strictness  in  amend- 
ment. The  statement  of  the  text 
that  the  writ  issues  out  of  the  court 
of  chancery,  while  correct  in  a  sense, 
is  misleading.  Before  there  existed 
any  court  of  chancery  for  the  grant- 
ing of  equitable  relief  there  was  a 
chancellor,  who  was  the  chief  officer 
of  all  the  king's  courts,  and  to  him 
was  confided  the  great  seal.  The 


king  as  fountain  of  justice  dis- 
pensed justice  in  his  courts  and  the 
suitor  must  obtain  the  king's  consent 
and  the  direction  of  what  course  to 
pursue,  by  an  application  to  the 
chancellor,  from  whom  he  purchased 
the  original  writ,  as  pointed  out  by 
Stephen.  The  writ  was  the  only 
warrant  of  authority  for  the  partic- 
ular court  to  "  hold  the  plea,"  or,  as 
we  would  say,  try  the  cause.  1  Spence, 
Eq.  Jur.  228;  2  Reeves'  Hist.  Eng. 
Law  (Finlanson  ed.),  150,  note.  And, 
as  it  described  the  cause  in  almost 
the  same  form  as  the  declaration,  it 
was  the  duty  of  the  court  to  have 
all  the  proceedings  conform  to  it;  as 
it  was  jurisdictional,  no  power  of 
amendment  could  go  beyond  it,  and 
if  the  trial  court  exceeded  his  juris- 
diction or  did  not  do  justice,  an  ap- 
peal would  lie  to  the  king,  i.  e.,  the 
case  came  back  to  where  it  started. 
1  Spence,  Eq.  Jur.  *111.  After  the 
extraordinary  jurisdiction  in  equity 
was  confided  to  the  chancellor,  who 
presided  over  a  separate  court,  the 
old  duty  of  issuing  writs  was  not 
taken  away,  and  hence  it  is  said  that 
these  writs  issue  out  of  the  court  of 
chancery.  From  this  expression  it 
might  be  supposed  that  the  court  of 
chancery  had  a  sort  of  supervision 
over  the  lav/  courts;  but  this  was  an 
ancient  duty  of  an  ancient  officer. 
When  the  jurisdiction  of  the  law 
courts  became  fixed  and  established 
by  law  the  reason  for  the  old  writ 
failed,  and  since  then  all  that  is  re- 
quired is  that  the  declaration  follow 
the  summons.  1  Spence,  Eq.  Jur. 

*OQO 
tUSOt 

In  the  United  States  the  constitu- 
tion creates  the  courts  and  fixes  the 
limits  of  judicial  jurisdiction,  hence 


110  CAUSES    AND    FOKMS    OF   ACTION.  [§  64. 

in  the  king's  name,  directed  to  the  sheriff  of  the  county  where 
the  injury  is  alleged  to  have  been  committed,  containing  a 
summary  statement  of  the  cause  of  complaint,  and  requiring 
him,  in  most  cases,  to  command  the  defendant  (e)  to  satisfy  the 
claim;  and,  on  his  failure  to  comply,  then  to  summon  him  to 
appear  in  one  of  the  superior  courts  of  common  law,  there  to 
account  for  his  non-compliance.  In  some  cases,  however,  it 
omits  the  former  alternative,  and  requires  the  sheriff  simply 
to  enforce  the  appearance. 

Objects  of  original  writ. —  One  object  of  the  original  writ, 
therefore,  is  to  compel  the  appearance  of  the  defendant  in  court; 
but  it  is  also  necessary  as  authority  for  the  institution  of  the 
suit;  for  it  is  a  principle  (subject  only  to  the  exception  intro- 
duced by  the  practice  of  proceeding  by  bill),  that  no  action  can 
be  maintained  in  any  superior  court  without  the  sanction  of  the 
king's  original  Avrit:  the  effect  of  which  is  to  give  cognizance 
of  the  cause  to  the  court  in  which  it  directs  the  defendant  to 
appear,  (f)  To  sue  out  an  original  writ  is,  consequently,  the 
first  step  taken  in  the  suit.  It  is  the  business  of  the  plaintiff 
to  sue  it  out,  and  he  obtains  it  as  a  matter  of  course;  upon  pay- 
ment, however,  to  the  king  of  afine  proportionate  to  the  amount 
of  the  demand  in  the  action. 

§  64.  Origin  of  forms  of  action. —  The  original  writs  differ 
from  each  other  in  their  tenor,  according  to  the  nature  of  the 
plaintiff's  complaint,  and  are  conceived  in  fixed  and  certain 
forms.  Many  of  these  forms  are  of  a  remote  and  undefined 
antiquity,  but  others  are  of  later  origin,  and  their  history  is  as 
follows:  The  most  ancient  writs  had  provided  for  the  most 
obvious  kinds  of  wrong;  but  in  the  progress  of  society,  cases 
of  injury  arose,  new  in  their  circumstances,  so  as  not  to  be 
reached  by  any  of  the  writs  then  known  in  practice,  and  it 
seems  that  either  the  clerks  of  the  chancery  (whose  duty  it  was 

(e)  It  may  be  observed  here,  that  in  a  personal  action  the  parties  are  called  plaintiff 
and  defendant;  in  a  real  action,  more  properly  demandant  and  tenant.  The  former  terms, 
however,  are  applicable  in  actions  of  every  description,  and  are  those  commonly  employed 
when  a  suit  is  mentioned  generally,  without  reference  to  its  particular  nature. 

(/)  Non  potest  quis  sine  brevi  agere.    Bract.  413,  b;  Gilb.  Hist.  C.  P.  2;  3  Bl.  Com.  273. 

there  is  no  such  thing  as  an  original  turned  to  the  ancient  Saxon  simplic- 
writ  in  the  English  sense;  but  the  ity  of  allowing  the  suitor  to  serve 
suitor  files  his  precipe  and  obtains  a  the  defendant  with  an  original  no- 
judicial  writ  as  his  first  process  (2  tice  and  copy  of  the  complaint.  See 
Bouvier's  Institutes,  §.5  2789-93),  and  1  Spence,  Eq.  Jur.  *62;  Andrews' 
in  some  code  states  they  have  re-  Am.  Law,  pp.  1043-49. 


§  64.]  PROCEEDINGS   IN    AN   ACTION.  Ill 

to  prepare  the  original  writ  for  the  suitor)  had  no  authority  to 
devise  new  forms  to  meet  the  exigency  of  such  new  cases,  or 
their  authority  was  doubtful,  or  they  were  remiss  in  its  exer- 
cise, (g)  Therefore,  by  the  Statute  of  Westminster  2, 13  Edw.  I., 
-ch.  24,  it  was  provided,  "  That  as  often  as  it  shall  happen  in 
the  chancery  that  in  one  case  a  writ  is  found,  and  in  a  like  case 
(in  consimili  casu\  falling  under  the  same  right,  and  requiring 
like  remedy,  no  writ  is  to  be  found,  the  clerks  of  the  chancery 
shall  agree  in  making  a  writ,  or  adjourn  the  complaint  till  the 
next  parliament,  and  write  the  cases  in  which  they  cannot 
agree,  and  refer  them  to  the  next  parliament,"  etc.  This  stat- 
ute, it  will  be  observed,  while  it  gives  to  the  officers  of  the 
•chancery  the  power  of  framing  new  writs  in  consimili  casu 
with  those  that  formerly  existed,  and  enjoins  the  exercise  of 
that  power,  does  not  give  or  recognize  any  right  to  frame  such 
instruments  for  cases  entirely  new.1  It  seems,  therefore,  that 
for  any  case  of  that  description  no  writ  can  be  lawfully  issued, 
except  by  authority  of  parliament.  But  on  the  other  hand,  new 
writs  were  copiously  produced,  (K)  according  to  the  principle 
sanctioned  by  this  act,  i.  e.,  in  consimili  casu^  or  upon  the  anal- 
ogy of  actions  previously  existing;  and  other  writs  also,  being 
added  from  time  to  time,  by  express  authority  of  the  legisla- 
ture, large  accessions  were  thus,  on  the  whole,  made  to  the 
ancient  stock  of  Jyrevia  originalia. 

All  forms  of  writs  once  issued  were  entered  from  time  to  time 
and  preserved  in  the  court  of  chancery,  in  a  book  called  The 
Eegister  of  "Writs,  (*)  which  in  the  reign  of  Henry  YI1I.  was 
first  committed  to  print  and  published.  (&)  This  book  is  still 
in  authority,  as  containing,  in  general,  an  accurate  transcript 
of  the  forms  of  all  writs  as  then  framed,  and  as  they  ought 
still  to  be  framed  in  modern  practice.  It  seems,  however,  that 
a  variation  from  the  Register  is  not  conclusive  against  the  pro- 
priety of  a  form,  if  other  sufficient  authority  can  be  adduced 
to  prove  its  correctness.  (7) 

Causes  of  action  correspond  to  original  writs. —  An  original 
writ  (as  already  stated)  is  essential  to  the  due  institution  of 

(0)  Vide  2  Reeves,  203;  3  Bl.  Com.  51;  8  Rep.  48,  9. 

(h)  3  Cooley's  Black.  (3d  ed.)  51;  3  Woodrl.  108;  4  Reeves,  430. 

(t)  3  Bl.  183;  4  Reeves,  426;  Gilb.  Hist.  C.  P.  4. 

(fc)  4  Reeves,  426,  432. 

•(1)  Bac.  Ab.  Abatement,  H.;  4  Reeves,  432. 

1  Andrews'  Am.  Law,  pp.  1048,  1049. 


112  CAUSES    AND    FOKMS    OF   ACTION.  [§§  C5-67. 

the  suit,  (m)  These  instruments  have  consequently  had  the  effect 
of  limiting  and  defining  the  right  of  action  itself;  and  no  cases- 
are  considered  as  within  the  scope  of  judicial  remedy,  in  the 
English  law,  but  those  to  which  the  language  of  some  known 
writ  is  found  to  apply,  or  for  which  some  new  writ,  framed 
on  the  analogy  of  those  already  existing,  may,  under  the  pro- 
vision of  the  statute  of  Westminster  2,  be  lawfully  devised. 
The  enumeration  of  writs,  and  that  of  actions,  have  become  in 
this  manner  identical,  (n) 

§  65.  Forms  of  action. —  The  law  of  actions,  comprising  their 
more  particular  divisions,  and  the  rules  as  to  their  respective 
competency  in  different  cases,  the  proper  parties  to  the  suit, 
and  the  power  of  joining  different  claims  or  demands1  in  the 
same  writ,  is  a  subject  which  is  not  necessary  here  to  discuss,, 
the  object  of  this  work  being  only  to  treat  of  those  general 
and  fundamental  rules  of  pleading  which  are  applicable  to  all 
actions  alike.  In  order,  however,  to  the  subsequent  illustration 
of  these  rules,  it  will  be  proper  to  present  the  reader  with  ex- 
amples of  such  of  the  forms  of  original  writs  (i.  e.,  the  common 
causes  of  action)  as  most  frequently  occur  in  modern  practice. 

§  66,  Writ  of  right. —  The  real  and  mixed  actions  which,  in 
modern  times,  have  perhaps  come  most  frequently  into  use,  are 
those  of  a  writ  of  right,  formedon,  dower,  and  quare  im.pedit? 
The  writ  of  right3  is  the  remedy  appropriate  to  the  case  where 
a  party  claims  the  specific  recovery  of  corporeal  hereditaments 
in  fee-simple ;  founding  his  title  on  the  right  of  property,  or  mere 
right,  arising  either  from  his  own  seisin  or  the  seisin  of  his  an- 
cestor or  predecessor,  (o)  Its  form  is  as  follows:  [Omitted.]  4 

§  67.  The  writ  of  formation  lies  where  a  party  claims  the 
specific  recovery  of  lands  and  tenements,  as  issue  in  tail;  or 

(m)  Supra. 

(n)  See  Appendix,  note  (2). 

(o)  F.  N.  B.  1  B. ;  3  Bl.  Com.  191.  As  to  the  "  right  of  property,  or  mere  right,"  vide  supra, 
p.  10^.  The  writ  here  mentioned  is  the  writ  of  right  quid  dominus  remisit  curiam,  which  is 
the  principal  and  most  usual  species.  As  to  this  and  the  other  species  of  the  writ  of  right, 
see  1  Arch.  402,  418;  3  Chitty,  635. 

1  See  Joinder  of  Counts.  at  common  law,  in  the  states  of  New 

2  Real  actions,  formerly  called  feu-  York,  Colorado,  Illinois,  Michigan. 
dal   actions,   are   now    obsolete    in  Newell  on  Ejectment,  56  et  seq.    See 
America.    They  were  abolished  in  Ex  parte  Bradstreet,  7  Pet.  634 
England,  with    few  exceptions,  by  4  These  actions  by  the  above  names 
3  &  4  Will  IV.,  c.  27,  §  36.  are  also  obsolete,  and  the  original 

3  Ejectment  may  now  be  brought,  writs  in  them  will  be  omitted  from 
under  the  statute,  in  all  cases  where  this  treatise. 

the  writ  of  right  might  be  brought 


§  68.]  PROCEEDINGS    IN   AN   ACTION.  113 

as  a  remainder-man,  or  reversioner,  upon  the  determination 
of  an  estate  tail,  (r)    Its  form  is  as  follows:  [Omitted.] 

§  68.  The  writ  of  dower  lies  for  a  widow  claiming  the  spe- 
cific recovery  of  her  dower,  no  part  of  it  having  been  yet  as- 
signed to  her.  (a?)1  [As  the  right  or  estate  of  dower  is  recog- 
nized in  America,  it  follows  that  there  is  a  judicial  means  of 
protecting  it.2  "  At  common  law,"  says  Mr.  Newell  in  his  ex- 
cellent work  on  Ejectment,  "the  assignment  of  dower  was  en- 
forced by  a  writ  of  unde  nihil  kabet,  or  by  writ  of  right  of 
dower  against  the  tenant  of  the  freehold,  and  if  judgment  was 
obtained  by  the  widow  she  could  then  recover  her  possession 
in  an  action  of  ejectment.3  The  writ  is  of  the  same  nature  and 
efficacy  as  the  writ  of  right  to  recover  the  fee.4  It  issued  upon 
filing  zprcecipe,  wherein  the  widow  stated  that  she  had  been 
married  to  and  declared  herself  to  have  been  the  wife  of  the 
person  whom  she  claimed  was  her  late  husband;  the  writ 
would  be  abated  if  this  were  omitted.5  Until  dower  had  been 
assigned,  or  if  judgment  had  been  obtained  upon  the  writ  and 
possession  taken  by  the  demandant,  the  owner  of  the  fee  or 
remainder-man  might  enter  and  take  possession  to  protect  his 
title.  The  writ  of  dower  is  now  abolished  in  most  of  the 
states,  but  ejectment  may  be  resorted  to  to  accomplish  the 
same  purpose." 6  And  if  the  plaintiif  prevails  she  recovers,  in 
addition  to  her  dower,  damages  for  its  detention.  This  right,  un- 
known to  the  common  law,  was  given  by  the  statute  of  Merton 
(20  Hen.  III.,  ch.  1)  in  cases  where  the  husband  died  seized.]  7 

(r)  Co.  Litt.  326,  b;  Booth,  139,  151,  154. 

(x)  The  writ  here  mentioned  is  the  writ  of  dower  unde  nil  habet,  which  Is  the  principal 
species,  and  the  only  one  known  in  practice.  There  is  another  called  a  writ  of  right  of 
dower,  which  applies  to  the  particular  case  where  the  widow  has  received  part  of  her  dower 
from  the  tenant  himself,  and  of  land  lying  in  the  same  town  in  which  she  claims  the  resi- 
due. Booth,  166;  Glan.  Lib.  6,  c.  4,  5. 

1The  action  to  recover  dower  was  3Park  on  Dower,  283;  2  Scrib.  on 

one  of  the  three  real  actions  which  Dower,  83. 

survived  in  England  the   repealing  *  2  Black.  Com.  182. 

statute  3  &  4  William  IV.,  chapter  7,  5Fulliam  v.  Harris,  Cro.  Jac.  217; 

section  36.     See  1  Washb.  Real  Prop.  3  Chitty,  PL  1311. 

(5th  ed.),  p.  290.    By  the  common-law  6  Newell  on  Ejectment,  p.  28.     See 

procedure  act  of  1860  a  writ  of  sum-  also  King  v.  Merritt,  67  Mich.  194; 

mons  was  substituted  in  England.  Evans  v.  Evans,  29  Pa.  St.  277. 

It  is  still  retained  in  Massachusetts.  7  The    states    in    this    country  in 

Pub.  Stat.,  ch.  173,  §  1.  which  statutory  provision  is  made 

2 Sands  v.  Church,  152  N.  Y.  174.  for  this  additional  remedy  are:  Illi- 
nois,   Iowa,    Maine,    Massachusetts, 


CAUSES    AND   FOEMS   OF    ACTION.  [§§  69-71. 

§69.  The  writ  ofquare  impedit  is  the  remedy  by  which^ 
where  the  right  of  a  party  to  a  benefice  is  obstructed,  he  re- 
covers the  presentation,  and  is  the  form  of  action  now  con- 
stantly adopted  to  try  a  disputed  title  to  an  advovrson.  (^) 

Its  form  is  as  follows:  [Omitted.] 

§  70.  Modern  mixed  actions. —  [A  treatise  of  this  kind  would 
be  incomplete  without  pointing  out  the  usual  modern  remedies, 
recognized  by  our  laws  for  the  protection  of  rights,  and  the 
editor  takes  this  place  to  give  a  brief  summary  of  the  mixed 
actions  not  mentioned  or  sufficiently  explained  by  our  author. 
The  actions  which  require  notice  are  forcible  entry  and  de- 
tainer, waste,  trespass  to  try  title,  and  writ  of  entry. 

§  71.  Forcible  entry  and  detainer1  is  another  remedy  for 
the  recovery  of  the  possession  of  land,  but  its  origin  and  basis 
are  somewhat  peculiar.2  It  was  intended  to  prevent  violence 
and  a  resort  to  force,  and  consequently  for  every  entry  upon 
land  in  actual  possession  with  actual  force  it  was  a  remedy  to- 
put  the  parties  in  statu  quo  without  regard  to  the  legal  right 
either  may  have  had  in  the  land.  It  was  regulated  by  statute 
in  England  at  an  early  day,  and  most  of  the  states  have  pre- 
served the  remedy. 

It  is  a  vexed  question,8  and  one  upon  which  there  is  conflict 
of  authority,  whether  an  action  of  trespass  quare  clausum  will 
lie  at  the  suit  of  the  occupant  for  a  forcible  entry  upon  lands 
by  the  owner.  The  discussion  always  involves  the  considera- 
tion of  the  statutes  of  forcible  entry  and  detainer.  It  has  been 
held  that,  when  there  was  actual  force,  trespass  would  lie  as 
well  as  forcible  entry.4 

It  is  a  civil  action:  The  civil  action  of  forcible  entry  and  de- 
tainer is  given  for  the  purpose  of  protecting  the  possession  of 

(z)  Booth,  223;  1  Arch.  434. 

Michigan,  Missouri,  New  Hampshire,  8  Denver,  etc.  Ry.  Co.  v.  Harris,  123 

New  Jersey,  New  York,  North  Caro-  U.  S.  597. 

liiia,  Ohio,  Oregon,  Rhode  Island,  4  Reedy  v.  Purdy,  41  111.  277;  Dun- 
Virginia,  West  Virginia  and  Wis-  ston  v.  Cowdry,  43  Vt.  635.  On  the 
consin.  See  a  note  to  the  case  of  contrary,  see  Hyatt  v.  Wood,  4  John. 
Roan  v.  Holmes,  21  L.  R.  A.  189.  See  150,  4  Am.  D.  258;  Tribble  v.  Frame, 
also  1  Washb.  Real  Prop.  (5th  ed.),  7  J.  J.  Marsh.  598, 23  Am.  D.  439.  See 
pp.  291-29&  discussions  in  Ft.  D.  Lodge  v.  Klein, 

!See  Willis  v.  Eastern  Trust  Co.,  115  111.  177;   Thomasson  v.  Wilson, 

169  U.  S.  295.  146  id.  384;  Phelps  v.  Randolph,  147 

*  Compare  it  with  ejectment.    See  id.  335;  Stearns  v.  Sampson,  59  Me. 

Malony  v.  Adsit.  175  U.  S.  281.  568,  8  Am.  R.  442. 


§  71.]  PROCEEDINGS   IN   AN   ACTION.  115 

real  property  by  affording  to  persons  entitled  to  the  posses- 
sion a  cheap  and  convenient  remedy  for  recovering  the  same.1 

What  may  ~be  recovered:  A  section  of  a  railroad  may  be  re- 
covered by  a  contractor.2  Though  there  can  be  no  adversary 
possession  against  the  state,  yet  a  person  in  actual  possession 
of  public  lands  is  entitled  to  all  the  remedies  which  the  law 
provides  for  the  protection  of  the  actual  possession.8 

The  questions  involved:  Two  questions  are  involved  in  these 
proceedings :  (1)  Whether  the  plaintiff  was  in  exclusive  pos- 
session ;  (2)  whether  the  defendant  forcibly  invaded  the  pos- 
session and  unlawfully  detained  it.4  The  action  is  wholly 
independent  of  title.5  The  party  having  title  and  right  of 
entry  must  resort  to  ejectment.6  A  judgment  in  an  action 
of  forcible  entry  and  detainer  cannot  be  pleaded  as  a  bar  to 
an  action  in  ejectment,  the  questions  involved  being  different.7 

The  possession  necessary  to  maintain:  Pedis  possessio  is  not 
necessary  to  maintain  this  action.  It  is  sufficient  if  the  prem- 
ises are  occupied  for  useful  purposes.8  The  statute  gives  a 
person  even  in  wrongful  possession  a  right  of  action  against 
the  owner  having  a  right  to  enter  if  he  make  a  forcible  entry, 
and  no  other  remedy  can  be  resorted  to.9  The  possession 
must  be  actual  and  of  sufficiently  long  standing  to  become  to 
a  legal  intent  peaceable.10  This  remedy  is  to  protect  actual 
possession,  whether  rightful  or  wrongful,  against  unlawful  in 
vasion,  and  to  give  summary  redress  and  restitution.11  No 
question  of  title  or  of  the  right  of  possession  can  arise.12  Neither 
right  of  possession  nor  constructive  possession  is  sufficient.13 
Nor  can  the  action  be  maintained  upon  a  scrambling  posses- 
sion.14 

1  Newell  on  Ej.  855.  dings  v.  Land  &  Water  Co.,  83  Cal. 

2  Iron  Mountain  &  H.  R.  R.  v.  John-    96. 

son,  119TJ.  S.  608.  »Canavan  v.  Gray,  64  CaL  5,  22 

3  Hears  v.  Dexter,  14  Va.  L.  J.  240.  Am.  L.  Reg.  718,  and  note, 

4  Jamison  v.  Graham,  57  111.  94.  10  Hoag  v.  Pierce,  28  Cal.  187. 
SHalony  v.  Adsit,  175  U.  S.  281;  "  Logan  v.  Lee,  53  Ark.  94;  Hears 

Smith  v.  Hollenback,  51  111.  223;  Still-    v.   Dexter,   14  Va,   L.   J.   240;  Iron 
man  v.  Palis,  134  id.  532.  Hountain  &  H.  R.  R,  v.  Johnson,  119 

6  Shoudy  v.  School  Directors,  32  I1L    U.  S.  608. 

29°-  i2  Dils  v.  Justice,  10  Ky.  L.  Rep.  547 

7  Riverside  Co.  v.  Townshend,  120    (1888>. 

111  9-  i«  Dils  v.  Justice,  10  Ky.  L.  Rep.  547. 

s  Pearson  v.  Herr,  53  111.  144;  Gid-      M  Voll  v.  Butler,  49  Cal.  74, 


116  CAUSES   AND   FORMS    OF   ACTION.  [§  71. 

In  HOUSG  v.  Keiser,1  where  one  in  the  morning  entered 
upon  a  portion  of  a  tract  of  land  in  the  possession  of  another, 
and  inclosed  it  with  a  fence  and  put  a  house  on  it  before  sun- 
down, it  was  held  that  he  did  not  acquire  such  a  peaceable 
possession  as  to  enable  him  to  maintain  the  action  against  the 
possessor,  who,  at  sundown  of  the  same  day,  destroyed  the 
house  and  fence  and  drove  him  away. 

The  force  necessary:  The  force  inhibited  by  the  act  is  actual 
force,  and  force  is  an  essential  element  to  the  action.2  A  mere 
trespass  will  not  sustain  the  proceeding;  there  must  be  the 
element  of  force,  or  violence,  or  terror  to  the  occupant.3  Force 
is  the  gist  of  the  action ;  and  entry  by  means  of  keys  is  not 
a  forcible  entry.4  But  where  one  entered  an  office  in  the 
night  by  means  of  skeleton  keys,  and  threw  the  furniture  out 
and  prevented  plaintiff  from  entering,  these  acts  were  taken 
as  one  transaction  and  the  action  sustained.5  "Where  the  orig- 
inal entry  is  lawful,  and  force  is  not  used  to  prevent  the 
plaintiff  from  regaining  possession,  the  action  cannot  be  sus- 
tained.6 

The  judgment  and  damages:  Under  Statute  8  Hen.  YL,  on 
judgment  for  the  plaintiff  the  possession  was  restored  together 
with  treble  damages.7  In  New  York,  under  the  code,  a  simi- 
lar rule  prevails.8  The  parties  must  be  restored  to  the  statu 
quo,  and  then  the  party  out  of  possession  must  resort  to  the 
law  to  obtain  what  he  claims.9 

In  all  cases  of  forcible  entry  nominal  damages  may  be  re- 
covered for  the  trespass ;  and,  in  addition,  damages  for  injuries 
to  the  person  or  personal  property  of  the  plaintiff.  Exem- 
plary damages  may  also  be  awarded  if  the  act  be  done  in  a 
wanton  and  reckless  manner.10 

1  8  Cal.  500.  6  Schmidberger  v.  Bloner,  66  Hun, 

2  Fort  Dearborn  Lodge  v.  Klein,    527. 

115  111.  177;  Hodgkins  v.  Jordan,  29  7  3  Cooley's  Black.  (3d  ed.)  179  et 

Cal.  577 ;  Wylie  v.  Wacldell,  52  Ma  seq. 

App.  226.  8  See  'Stover's  Anno.  Code  N.  Y., 

s  Ely  v.  Yore,  71  Cal.  130;  Wood  §§1577,  1927. 

v.  Phillips,  43  N.  Y.  152;  Castro  v.  9  Iron  Mountain  &  H.  R.  R.  v.  John- 

Tewksbury,  69  Cal.  562.  eon,  119  U.  S.  608. 

<  Livingston  v.  Webster  (Fla.,  1890),  10  Moseller  v.  Deaver  (N.  C.) ;  and  see 

8  S.  Rep.  442.  note  to  this  case  in  8  L.  R.  A.  537. 

*Greeley  v.  Spratt,  19  Fla.  644, 


§  72.]  PROCEEDINGS    IN   AN    ACTION.  117 

In  California,  in  an  action  for  forcible  entry,  the  plaintiff 
may  recover  damages  occasioned  thereby,  together  with  a 
judgment  for  the  restitution  of  the  premises.1 

Statutory  remedy  for  premises  unlawfully  detained,  simply: 
In  many  states  the  action  may  be  maintained  under  the  stat- 
ute by  landlord,  vendee,  mortgagee,  trustee  or  other  person 
against  whom  the  possession  is  withheld,  by  tenant,  vendor, 
mortgagor,  grantor  or  other  person,  after  the  expiration  of  his 
right  by  contract,  express  or  implied.2 

Under  statutes  —  Demand:  Where  the  entry  is  forcible,  de- 
mand before  suit  is  unnecessary.3  A  distinction  is  to  be  made 
between  such  cases  and  one  where  there  is  an  unlawful  de- 
tainer after  peaceable  entry.4 

§  72.  The  action  of  waste  should  receive  particular  atten- 
tion, although  our  author  does  not  mention  it,  notwithstanding 
the  writ  of  waste  was  not  abolished  in  England  until  about  ten 
years  after  the  publication  of  his  work :  the  reason  probably 
is  found  in  that  the  writ  had  fallen  into  disuse,  and  given  way 
to  the  remedy  by  the  action  on  the  case.  "Waste  differed 
from  trespass  in  that  it  was  most  frequently  brought  against 
one  in  the  lawful  possession  of  the  land.  Besides  the  legal 
remedies  for  waste,  equity  would  interfere  to  prevent  it.  The 
subject  receives  quite  full  treatment,  with  notes  citing  many 
American  authorities,  in  Judge  Cooley's  edition  of  Blackstone.5 

The  action  of  waste  was  formerly  a  mixed  action.6  The 
action  on  the  case  in  the  nature  of  waste  was  devised  to 
avoid  the  defective  and  inadequate  remedy  afforded  by  waste. 
It  is  an  equitable  action,  and  is  not  to  be  discountenanced  by 
any  technical  consideration,  but  must  be  sustained  in  all  cases 
and  against  all  persons  who  are  by  the  statutes  of  Marlbridge 
or  Gloucester,  or  by  the  common  law,  liable  to  waste.7  It 
may  be  brought  against  a  stranger  as  well  as  against  a  ten- 

1  Deering's    Anno.  Code   of   Cal.,        » Still  man  v.  Palis,  134  111.  532. 

§  1160  et  seq. ;  Anderson  v.  Taylor,  «  Farncomh  v.  Stern,  18  Colo.  279. 

56  Cal.  131.  »  3  Cooley's  Black.  (3d  ed.)  223.  See, 

2  See  Ragan  v.  Harrell,  52  Miss,  also,  Jerome  v.  Ross,  7  John.  Ch.  315 ; 
818;  Stillman  v.  Palis,  134  111.  532;  Griffith  v.  Hillard,  64  Vt  64a 
Labro  v.  Campbell,  56  N.  Y.  Supr.  70 ;  63  Cooley's  Black.  224. 

Kellogg  v.  Groves,  53  la.  395 ;  Ems-       ">  See  White  v.  Wagner,  4  H.  &  J. 
.ey  v.  Bennett,  37  id.  15 ;  McClain's    373. 
Anno.  Iowa  Code  (1888),  §  4860. 


118  CAUSES   AND    FORMS   OF    ACTION.  [§  73. 

p 

ant.1  By  the  statute  of  Gloucester  (6  Edw.  L,  ch.  5),  the 
plaintiff  in  an  action  of  waste  could  recover  not  ouly  the  place 
wasted,  but  treble  the  damages.  And  this  was  adopted  in 
Massachusetts.2 

By  statute  in  Maine  either  waste  may  be  maintained  —  by 
which  the  property  may  be  recovered,  together  with  dam- 
ages —  or  an  action  on  the  case  in  the  nature  of  waste.3 

"While  trespass  is  an  injury  to  the  possession,  waste  is  com- 
mitted or  suffered  by  the  person  actually  or  constructively  in 
possession.4  But  under  the  code  the  owner  of  real  estate 
which  is  in  the  actual  occupation  of  a  tenant  may  maintain 
an  action  against  a  trespasser  for  an  injury  to  his  estate.5 
"Waste  did  not  lie  against  a  stranger;  but  case  in  the  nature 
of  waste  was  a  different  remedy,  and  was  coextensive  with 
the  liability  to  injury.6  An  action  on  the  case  in  the  nature 
of  waste  was  a  common-law  remedy,7  and  it  has  been  adopted 
in  some  of  the  states.  It  may  be  brought  against  any  one 
committing  the  wrong.8 

Chancery  has  always  gone  greater  lengths  than  the  courts 
of  law  in  staying  waste.  The  usual  remedy  now  is  by  in- 
junction to  restrain  from  waste,  and  this  remedy  is  applicable 
to  every  species  of  waste.9 

§  73.  The  writ  of  entry  was  a  very  ancient  common-law 
remedy  for  the  trial  of  the  title  of  land,  and  is  quite  fully  de- 
scribed by  Blackstone,  who  points  out  that  it  was  a  much  more 
simple  and  speedy  remedy  under  the  Saxons  than  after  the 
Conquest. 

An  original  writ  of  entry  was  a  writ  requiring  the  sheriff  to 
command  the  tenant  of  land  that  he  render  to  the  demand- 
ant the  possession  of  the  premises  in  question,  or  to  appear  in 
court  on  a  certain  day  named  to  show  cause  why  he  has  not 
done  so.10  The  writ  was  abolished  in  England  by  Statute  3 

1  Dupree  v.  Dupree,  4  N.  C.  R  387 ;        6  Chase  v.  Hazelton,  7  N.  H.  171 ; 

Bacon  v.  Smith,  41   Eng.  C.  L.  571 ;  3  Cooley's  Black.  (3d  ed.)  227. 
Dickinson  v.  Mayor,  etc.,  48  Md.  583.        '  1  Washb.  Real  Prop.  (5th  ed.)  159. 

*  Sackett  v.  Sackett,  8  Pick.  307.  8  Thomas  v.  Crofut,  14  N.  Y.  474. 

s  Stetson  v.  Day,  51  Me.  434  9  Hawley  v.  Clowes,  2  Johns.  Ch, 

«  Cooley  on  Torts  (2d  ed.),  392.  122 ;  Cooley  on  Torts  (3d  ed.),  395. 

6  Brown  v.  Bridges,  31  la.  m  10  3  Cooley's  Black.  (3d  ed.)  180-184; 

Newell,  Ej.  88a 


§   73.]  PROCEEDINGS   IN   AN    ACTION.  119 

and  4  William  IV.,  chapter  27.  The  freehold  must  be  in  the 
demandant.1  The  writ  of  entry  sur  disseisin  still  survives  in 
Maine,  New  Hampshire  and  Massachusetts.2 

By  statute  in  Maine  any  estate  of  freehold,  in  fee-simple, 
fee-tail,  for  life,  or  any  term  of  years,  may  be  recovered  by 
writ  of  entry.  And  to  a  good  declaration  four  things  are 
necessary:  1.  The  premises  demanded  must  be  clearly  de- 
scribed. 2.  The  estate  which  the  demandant  claims  in  the 
premises  must  be  stated.  3.  An  allegation  that  the  de- 
mandant was  seized  of  the  estate  claimed  within  twenty  years 
4.  A  disseisin  of  the  tenant.3 

Damages  which  a  demandant  may  recover  are  the  "  clear 
annual  value  of  the  premises  "  during  the  time  the  tenant  was  in 
possession,  and  damages  for  waste,  but  not  consequential  dam- 
ages for  alleged  injuries  to  adjoining  lands  belonging  to  the 
demandant ;  and  the  defendant  may  set  off  taxes  and  necessary 
expenses  and  the  value  of  improvements.4 

If  the  land  demanded  is  subject  to  an  easement  the  judg- 
ment will  not  disturb  the  easement.5  Where  all  the  deeds 
under  or  through  which  a  demandant  claims  are  merely  re- 
leases and  quitclaim  conveyances,  and  it  does  not  appear  that 
any  of  the  grantors  were  ever  in  possession,  such  demandant 
cannot  recover.6  But  this  doctrine  is  not  applicable  where 
the  title  of  each  side  comes  down  from  the  same  grantor.7 

Possession  under  a  claim  of  right  constitutes  a  legal  seisin, 
which  will  avail  against  everyone  not  having  an  older  and 
better  title.8  Equitable  title  is  not  sufficient  to  sustain  a  writ 
of  entry.9  But  an  equitable  defense  will  defeat  the  action.10 
Where  the  claim  of  the  tenant  is  merely  an  easement  the  de- 
mandant cannot  recover  damages.11 

The  demandant  must  recover  upon  the  strength  of  his  own 
title  and  not  upon  the  weakness  of  that  of  the  tenant.  If  a 
tenant  in  common  brings  the  writ  without  joining  his  co- 

1  Webster  v.  Gilman,  1  Story  (U.  S.),        '  Wiley  v.  Williamson,  68  Me.  71. 
499.  spettingell  v.  Boynton,  139  Mass. 

*  Potter  v.  Baker,  19  N.  H.  166.  244 ;  Gibson  v.  Bailey,  9  N.  H.  168. 
»Wyman  v.  Brown,  50  Me.  139.  »  Eastman  v.  Fletcher,  45  Me.  302. 

«McMahan  v.  Bowe,  114  Mass.  140.       ™Nott  v.  Sampson  Mfg.  Co.,  142 

6  Ayer  v.  Phillips,  69  Me.  50.  Mass.  479. 
«Rand  v.  Skillin,  63  Me.  103,  «  Cole  v.  Eastham,  124  Mass.  307. 


120  CAUSES  AND  FORMS   OF  ACTION.  [§  74r. 

tenants,  he  is  entitled  to  recover  only  the  undivided  portion 
to  which  he  proves  a  sufficient  title.1 

A  general  description  of  the  premises  is  sufficient.2  It  must, 
however,  be  made  so  certain  that  seisin  may  be  delivered  to 
the  sheriff  without  reference  to  any  description  dehors  the 
writ.3 

In  general,  the  action  must  be  against  the  person  claiming 
an  estate  not  less  than  freehold.  This  is  not  so  in  case  of 
ouster.  To  defeat  the  action  on  the  ground  that  he  was  not 
tenant  of  the  freehold,  and  had  not  ousted  the  demandant,  the 
tenant  must  plead  non-tenure  in  abatement.4  The  writ  is 
sufficient  if  it  alleges  a  fee.5 

§  74>  Trespass  to  try  title. —  Instead  of  the  action  of  eject- 
ment, some  of  the  states  have  substituted  trespass  to  try  title. 
It  is  in  form  an  action  of  trespass  quare  clasum  fregit,  with 
the  additional  element  of  a  notice  to  the  effect  that  the  action 
is  brought  to  try  the  title  to  the  lands  in  controversy,  as  well 
as  for  the  recovery  of  damages.6 

In  Texas  this  is  the  exclusive  form  of  action  for  the  trial 
of  suits  involving  questions  of  controverted  title.7  It  formerly 
existed  in  South  Carolina  as  a  substitute  for  ejectment,  but 
was  lately  abolished.8 

Though  all  fictitious  proceedings  in  the  action  of  ejectment 
have  been  abolished,  the  principles  of  justice  and  equity  which 
were  administered  under  that  form  of  action  are  nevertheless 
the  rules  of  action  and  construction  in  trespass  to  try  title.9 

The  owner  of  land  may  by  a  fiction  elect  to  consider  him- 
self ousted  and  bring  suit  against  an  adverse  claimant  of  the 
land,  even  though  such  claimant  has  never  been  in  actual  pos- 
session.10 The  action  may  be  maintained  to  recover  the  posses- 
sion and  rents  from  a  tenant  holding  over  after  the  expiration 
of  his  term.11 

1  Butrick  v.  Tilton,  143  Mass.  9&  7See  R  S.,  Tex.,  1879,  ch.  1,  tit.  96, 

2  Baker  v.  Bessey,  73  Me.  473.  p.  703. 

» Pettingell  v.  Boynton,  139  Mass.        8  See  R  S.,  S.  C.,  1873,  588. 
244.  9 Hough  v.  Hammond,  36  Tex.  657. 

<  Wyman  v.  Brown,  50  Ma  139.  ">  Titus  v.  Johnson,  50  Tex.  224. 

'Baker  v.  Bessey,  73  Me.  472;  But-       "Thurber  v.  Conners,  57  Tex.  96; 

rick  v.  Tilton,  141  Mass.  93.  Lamb  y.  Beaumont  Temp.  Hall  Co.. 

6  See  Kennedy  v.  Campbell,  2  Tr.  2  Tex.  Civ.  App.  289. 
Con.  R  (&  C.)  760. 


§  74.]  PROCEEDINGS   IN   AN    ACTION.  121 

When  the  legal  title  is  held  by  the  defendant  for  a  third 
person,  such  third  person  is  properly  admitted  as  a  party  de- 
fendant to  protect  his  interest.1  The  plaintiff  must  rely  for 
recovery  upon  his  own  title  and  that  which  he  has  at  the  in- 
stitution of  the  suit:  a  title  subsequently  acquired  cannot 
avail  him.2  The  action  may  be  maintained  upon  an  equitable 
as  well  as  the  legal  title.  The  remedy  was  designed  to  be 
broad  enough  and  effective  enough  in  its  scope  to  embrace  all 
character  of  litigation  affecting  the  title  to  real  estate.8  It 
may  be  maintained  upon  a  bond  for  title.4  The  claimant 
must  prove  the  title  under  which  he  claims,  and  must  also 
prove  that  the  land  described  in  his  petition  is  the  same  pos- 
sessed by  the  defendant,  unless  he  is  relieved  from  so  doing 
by  the  pleading  or  admission  of  the  defendant.5 

Defendant  cannot  question  the  validity  of  his  grantor's  title 
at  the  time  of  conveyance  to  him  in  a  contest  with  a  plaintiff 
claiming  under  the  same  grantor,  unless  he  has  a  blaim  under 
a  paramount  title.6  When  recovery  is  sought  against  naked 
trespassers  without  title  or  color  of  title,  the  defense  of  stale 
demand  is  unavailing  to  defeat  the  right  of  recovery.7 

The  defendant  pleads  "  not  guilty."  This  does  not  admit 
a  trespass  on  his  part,  but  calls  upon  the  plaintiff  not  only 
to  prove  title  in  himself  but  also  to  prove  an  actual  or  con- 
structive trespass  by  some  character  of  adverse  claim  or  as- 
sertion of  title  or  interest  by  defendant.8 

Where  the  plaintiff's  interest  in  several  tracts  of  land  arises 
from  one  transaction  they  may  all  be  sued  for  in  one  action.9 

The  verdict  must  explicitly  locate  the  boundaries.10  Plaint- 
iffs will  not  be  permitted  to  recover  a  tract  of  land  not  de- 
scribed in  their  petition.  The  burden  is  upon  them  to  show 
that  the  defendants  were  in  possession  of  the  land  described 
in  the  petition.11 

1  McPherson  v.  Johnson,  69  Tex.  Swearingen  v.  Reed,  2  Tex.  Civ.  App. 

484.  364. 

»  Collins  v.  Sallow,  72  Tex.  330 ;        1  Wright  v.  Dunn,  73  Tex.  293. 
Barnes  v.  McArthur,  4  Tex.  Civ.  App.        »  Titus  v.  Johnson,  50  Tex  224 ; 

71.  Stroud  v.  Springfield,  28  id.  649. 

»  Hardy  v.  Beaty,  84  Tex.  563.  »  Murrell  v.  Wright,  78  Tex.  519. 

4  Wright  v.  Dunn,  73  Tex.  293.  10  McCurdy  v.  Bullock,  2  Tex.  Civ. 

6  Stroud  v.  Springfield,  50  Tex.  224.  App.  223. 

8Cooke  v.  Avery,   147  U.  S.  375;       u  Medlin  v.  Wilkins,   1   Tex   Civ. 

App.  465. 


122  CAUSES   AND   FORMS   OF   ACTIOX.     '  [§§  75,  76. 

The  judgment  is  in  form  for  the  recovery  of  damages,  but 
the  successful  plaintiff  is  entitled  to  a  writ  of  habere  facias 
possessionem. —  ED.] 

§  75.  Personal  actions. —  Of  personal  actions  the  most  com- 
mon are  the  following:  debt,  covenant,  detinue,  trespass,  tres- 
pass on  the  case  (including  assumpsit),  and  replevin. 

§  76.  The  [action]  writ  of  debt  lies  where  a  party  claims 
the  recovery  of  a  debt,  i.  e.,  a  liquidated  or  certain  sum  of 
money  alleged  to  be  due  to  him.  [This  brief  sentence  does  not 
indicate,  sufficiently  for  our  purpose,  the  nature  of  the  action 
of  debt  as  distinguished  from  assumpsit  and  covenant.  There 
is  something  more  than  a  distinction  between  names  indicated 
by  these  designations.  There  is  a  substantial,  practical  differ- 
ence in  the  nature  of  the  cause  of  action  upon  which  the  suit 
is  based ;  and  it  is  a  distinction  which  the  American  lawyer 
must  needs  appreciate  before  he  is  able  to  select  and  apply  the 
remedies  which  are  afforded  against  a  party  who  disregards 
the  obligation  of  his  contract,  for  the  reason  that  upon  this 
distinction  depends  the  selection  and  indication  of  the  theory 
of  his  suit.  The  cause  of  action  \yhich  is  made  the  basis  of  the 
form  of  action  designated  debt  is  a  sum  of  money  due  accord- 
ing to  the  terms  of  some  obligation  to  pay  money,1  which  may  be 
an  oral,  a  written,  an  implied  contract,2  or  an  express  obliga- 
tion imposed  by  a  public  law,  be  it  custom,  statute,  or  a  city 
ordinance.3 

Assumpsit  proceeds  upon  the  different  idea  of  recovering 
damages  for  the  breach  of  a  contract,4  although,  as  we  shall 
see,  it  may  be  adopted  as  a  concurrent  remedy  with  debt  where 
the  money  is  due  upon  a  contractor  an  instalment;5  while 

1  See    Anson,  Contracts    (2d  ed.),        3Anson  on  Contracts;   Stockwell 
pp.  *37,  *363;  United  States  v.  Colt,    v.  United  States,  13  Wall  543;  Baum 
Pet.  C.  C.  45,  25  Fed.  Cas.  581;  1  Dill.    v.  Tonkin,  110  Pa.  St.  569. 

Mun.  Corp.,  sec.  408  et  seq.  4The  action  for  debt  is  older  than 

2  It  was  in  ancient  times  the  com-  the  action  for  damages  arising  for 
mon  action  for  goods  sold,  work  and  breach  of  contract.   See  Anson,  Con- 
labor,  on  the  theory  of  an  express  or  tracts  (3d  Am.  ed.),  pp.  *38,  *362; 
implied  obligation  to  pay  money,  al-  Andrews'  Am.  Law,  pp.  728-725. 
though  the  sum  was  not  precisely  *>  See  post,  p.  133;  United  States  v. 
fixed.     Rudder  v.  Price,  1  H.  Blk.  Colt,  Pet.  C.  C.  45,  25  Fed.  Cas.  581; 
547;  United  States  v.  Colt,  Pet,  C.  C.  Andrews'  Am.  Law,  pp.  762, 763,  note. 
145. 


§  76.]  PROCEEDINGS    IN   AN   ACTION.  123 

covenant  is  distinguishable  from  these  actions  because  of  the 
special  form  of  action  on  the  special  form  of  contract,  viz. :  a 
contract  under  seal.  Anson,  speaking  of  the  breach  of  con- 
tract, says:  "A  breach  always  gives  a  right  of  action,  but  does 
not  always  discharge  the  contract;"  and  proceeding,  says: 
"  The  discharge  of  contract  is  indicated  with  some  precision 
ly  the  pleadings  in  use  before  the  judicature  acts.  Many  of 
the  cases  which  illustrate  this  part  of  the  subject  turn  upon 
the  question  of  pleadings,  and  we  shall  find  that  the  under- 
standing of  the  remedy,  as  often  happens,  is  a  material  assist- 
ance to  the  ascertainment  of  the  right."  *  A  distinguishing 
feature  of  this  form  of  action  was  formerly  supposed  to  consist 
in  the  certainty  of  the  amount  to  be  recovered,  i.  e.,  the  re- 
covery of  a  liquidated  or  fixed  amount  of  money,  or  nothing, 
and  so  it  was  formerly  stated  that  a  recovery  could  not  be  had 
for  more  or  less.2  This  strictness  seems  never  to  have  been 
well  founded,  and  the  action  was  always  upheld  in  all  cases 
where  the  thing  to  be  recovered  was  money  as  distinguished 
from  a  specific  chattel  (though  it  be  designated  pieces  of  money), 
and  the  sum  was  certain  or  capable  of  ascertainment  by  com- 
putation or  estimate.3 

These  considerations  make  it  clear  why  debt  is  an  appropri- 
ate remedy  to  recover  a  fixed  penalty  imposed  by  statute  or 
the  ordinances  of  a  municipal  corporation.4] 

1  Anson  on  Contracts  (3d  ed.),  pp.  English  case  (Hochaster  v.  De  La 

276,  277.    The  reader  will  see  that  in  Tour  (1852),  2  El.  &  Bl.  678,  and  Roehm 

the  case  of  anticipatory  breach  of  v.  Horst,  178  U.  S.  1,  which  is  the 

contract,  or  even  in  case  of  non-pay-  modern  ruling  case),  see  article  by 

ment  of  an  instalment  of  an  entire  Mr.  Paul  A.  Moses  in  Nat'l  Corp.  Rep., 

contract,  "debt"  was  not  theoretically  vol.  31,  Nos.  3,  4  and  5.    See  L.  S.  & 

an  appropriate  action,  there  being  M.  S.  Ry.  Co.  v.  Richards.  152111. 59,  30 

nothing  due  according  to  the  terms  L.  R.  A.  33;  Note  to  Gerli  v.  Poide- 

of  the  contract  (Rudder  v.  Price,  1  bard  Silk  Mfg.  Co.,  80  L.  R.  A.  61. 

H.  Blk.  547),  whereas  for  a  monthly  or  23  Cooley's    Blk.    (4th    ed.),    154; 

stated  instalment  debt  would  be  the  Hughes  v.  Union  Ins.  Co.,  8  Wheat, 

natural  remedy,  and  assumpsit  being  311,  and  note;  Rudder  v.  Price,  1  H. 

allowed  only  by  indulging  the  ficti-  Blk.  547. 

tious  promise  to  pay,  because  the  sum  3See  opinion  of  Justice  Washing- 
was  due.  See  "Action  of  Assumpsit."  ton  in  United  States  v.  Colt,  supra, 
For  a  very  able  and  exhaustive  dis-  also  reported  in  8  Wheat.  App.  17. 
cussion  of  the  doctrine  of  anticipa-  4  3  Cooley's  Blk.  (4th  ed.),*l 60.  *161; 
tory  breach,  explaining  the  leading  Stockwell  v.  United  States,  13  Wall. 


CAUSES   AND   FOKHS    OF   ACTION. 


[§77. 


FOKM   OF   WRIT   OF    DEBT. 

George  the  Fourth,  etc.,  to  the  Sheriff  of ,  Greeting: 

Command  C.  D.,  late  of  ,  gentleman,  that  justly  and 

without  delay  he  render  to  A.  B.  the  sum  of pounds  of 

good  and  lawful  money  of  Great  Britain,  which  he  owes  to 
and  unjustly  detains  from  him,  as  is  said.  And  unless  he  shall 
do  so,  and  if  the  said  A.  B.  shall  make  you  secure  of  prose- 
cuting his  claim,  then  summon,  by  good  summoners,  the  said 
C.  D.,  that  he  be  before  us,  in  eight  days  of  Saint  Hilary, 
wheresoever  we  shall  then  be  in  England,  (c)  to  show  where- 
fore he  hath  not  done  it;  and  have  you  there  the  names  of  the 
summoners  and  this  writ. 

Witness  ourself,  at  Westminster,  the  day  of ,  in 

the year  of  our  reign,  (d) 2 

§  77.  [The  action  of  account  was  obsolete  in  England  at  the 
time  our  author  wrote.3   The  action,  though  supplanted  by  the 

(b)  This  is  debt  in  the  debet,  which  is  the  principal  and  only  common  form.    There  is  an- 
other species  mentioned  in  the  books,  called  debt  in  the  detinet,  which  lies  for  the  specific 
recovery  of  goods  under  a  contract  to  deliver  them.    1  Chitty,  101. 

(c)  "Before  us,  wheresoever  we  shall  then  be  in  England,"  expresses,  in  writs,  the  court 
of  king's  bench;  where  the  action  in  this  and  the  folio  whig  examples  is  supposed  to  be 
brought. 

(d)  Tidd's  Practical  Forms. 


543;  W.  U.  TeL  Co.  v.  Scircle,  103 
Ind.  227. 

1  The  writ  of  debt  only  will  be  pre- 
served in  order  that  the  student  may 
compare  the  writ  with  the  declara- 
tion. 

2  This  is  the  form  of  action  of  debt 
as  it  was;  it  was  called  in  the  debet. 
There  is  another  form  of  this  action 
which   is    now  obsolete,  being   re- 
placed by  replevin.    It  was  used  for 
the   recovery   of   specific    chattels. 
Debt  against  an  executor  should  be 
in  the  detinet,  unless  he  has  made 
himself  personally  responsible  as  by 
devastavit.     Childress  v.   Emory,  8 
Wheat.  642. 

3  But  I  do  not  find  that  even  mat- 
ters of  account  between  copartners 
belong   exclusively   to    this    court, 
though  in  practice  they  may  be  con- 
fined here.    Courts  of  law  and  equity 
have  concurrent  jurisdiction  in  mat- 


ters of  account;  and  it  Is  conceded 
that  an  action  of  account  at  law  may 
be  brought  by  one  partner  against 
another.  Co.  Litt.  17 la;  Montague, 
Partn.,  vol.  1,  45.  In  that  action  the 
auditors  have  all  the  requisite  pow- 
ers, for  they  can  compel  the  parties 
to  account,  and  to  be  examined  under 
oath;  and  I  have  not  been  able  to 
discern  any  good  reason  why  that 
action  has  so  totally  fallen  into  dis- 
use. The  practice  also,  under  the 
statute,  of  appointing  referees  in 
matters  of  account  is  a  new  power 
given  to  our  courts  of  law;  and  it 
would  seem  to  render  the  cognizance 
of  such  causes  much  more  suitable 
for  a  court  of  law  here  than  in  Eng- 
land. This  court  has  no  better  mode 
of  settling  accounts  than  by  referees; 
and  it  is,  in  many  cases,  under  the 
necessity  of  appointing  a  merchant, 
or  other  skilful  accountant,  to  assist 


§  77.]  PKOCEEDINGS   IN   AN   ACTION.  125 

equitable  suit  of  accounting,1  is  still  not  entirely  obsolete  in 
the  United  States.  At  common  law  it  lay  to  compel  an  ac- 
count and  settlement  against  a  guardian  in  socage,  bailiff,  or 
by  one  merchant  against  another  on  open  account;  but  for- 
merly it  would  lie  only  between  the  parties  to  the  agreement 
and  not  against  their  executors  or  representatives,  nor  in  part- 
nership matters  where  there  were  more  than  two  partners.2 
This  was  remedied  in  England  by  statute.3  The  scope  of  the 
action  has  been  extended  in  the  United  States  to  all  situations 
where  there  is  a  liability  to  account.4  The  theory  of  the  ac- 
tion is  not  that  the  defendant  is  indebted  to  the  plaintiff,  but 
that  he  is  obliged  to  account,5  and  consequently  the  auditors 
are  not  confined  to  rendering  an  account  of  money  due  against 
the  complaining  party,  but  the  judgment  may  be  against  the 
plaintiff;6  and,  unlike  actions  for  money  or  actions  sounding 
in  damages,  the  judgment  may  be  for  more  than  is  asked.7  A 
jury  trial  is  allowed  and  required  in  such  cases,  but  the  trial  is 
confined  to  the  single  issue,  as  to  whether  there  is  a  liability 
to  account,  while  the  statement  and  balance  of  account  are 
left  to  auditors;8  and  the  judgment  quod  computet  is  not  a 

the  master  in  taking  and  stating  the  proportion  of  rents,  etc.    Barnum  v. 

accounts.    Duncan  v.  Lyon,  3  Johns.  Landon,  25  Conn.  137.    And  to  dis- 

Ch.  351, 1  L.  ed.  644.  close  the  state  of  the  account  be- 

1  Neal  v.  Keel's  Ex'rs,  4  T.  B.  Mon.  tween  principal  and  agent.    Shriver 
162;  McMurray  v.  Rawsom,  3  Hill,  v.  Nimick,  41  Pa.  St.  80. 

59;  Duncan  v.  Lyon,  supra.  In  Illinois,  if  the  defendant  fails  to 

2  In  Vermont  the  remedy  is  ex-  appear  or  refuses  to  account,  appear- 
tended  to  an  accounting  between  ance  and  accounting  may  be  corn- 
three  or  more  partners,  and    even  pelled  by  attachment  of  his  person, 
where    one   partnership  interest   is  Starr  &  Curt.  111.  St.,  vol.  1,  p.  188. 
represented    by    an    administrator.  The  defendant  may  plead  that  he 
Park  v.  McGowen,  64  Vt.  173.  is  willing  to  account,  confessing  his 

3  4th  Ann.,  ch.  16.    See  3  Cooley's  liability,  which  renders  a  trial  un- 
Blk.  (4th  ed.)  163.  necessary;  or  he  may  plead  a  full 

4  Andrews' Am.  Law,  p.  1074.  account   rendered — plene  computa- 

5  Id.     It  will  not  lie  where  a  final  vit.    Lee  v.  Abrams,  12  111.  111.     Or 
settlement    of   accounts    has    been  he  may  deny  his  liability  to  account, 
made,  and  a  balance  struck.    An-  Lee  v.   Abrams,  supra;  Garrity  v. 
drews  v.  Allen,  9  S.  &  R.  241 ;  Morgan  Hamburger  Co.,  136  III  499. 

v.  Adams,  37  Vt.  233.     It  will  lie  in  <*McPherson  v.  McPherson,  11  N.  C. 

Illinois  on  book  accounts.     Garrity  400;  Hawley  v.  Burd,  6  111.  App.  454. 

v.  Hamburger  Co.,  136  111.  499.     It  7  Gratz  v.  Phillips,  5  Binney,  564; 

may  be  brought  by  one  tenant  in  Lee  v.  Abrams,  12  111.  110. 

common  against  a  co-tenant  for  a  8  Duncan  v.  Lyon,  3  Johns.  Ch.  351. 


126 


CAUSES   AND    FORMS    OF    ACTION. 


[ 


79. 


final  and  appealable  judgment.  A  final  judgment  is  rendered 
by  the  court  on  the  finding  of  the  auditors  or  referees  for  the 
amount  found  due  by  them.  Under  the  Illinois  practice  an 
action  of  assumpsit  may  be  changed  to  account  and  proceed 
to  conclusion  according  to  the  theory  and  practice  in  such 
cases.1 

§  78.  The  writ  of  covenant  lies  where  a  party  claims  dam- 
ages for  breach  of  covenant,  i.  e.t  of  a  promise  under  seal? 
Its  form  is  as  follows:  [Omitted.] 

Where  by  statute  the  distinction  between  sealed  and  simple 
contracts  is  abolished,  of  course  the  effect  is  to  obliterate  the 
distinction  between  the  form  of  action.8 

§  79,  The  writ  of  detinue  lies  where  a  party  claims  the 
specific  recovery  of  goods  and  chattels,  or  deeds  and  writings, 
detained  from  him.4  This  remedy  is  in  somewhat  less  fre- 


1  Garrity  v.  Hamburger  Co.,  136  III 
499. 

2  Covenant  will  lie  only  where  the 
instrument  is  actually  signed  and 
sealed  by  the  party  or  by  his  author- 
ity.   A  recognition  of  the  contract, 
though  in  writing  and  under  seal, 
will  not  make  it  a  covenant.    Gale 
v.  Nixon,  6  Cow.  445.    On  a  writing 
under  seal  for  the  payment  of  an 
uncertain  sum,  covenant  is  the  proper 
action.    Wilson  v.  Hickson,  1  Blackf. 
230.    The  action  is  not  confined  to 
covenants  framed  in  any  particular 
words,  but  may  be  maintained  upon 
any  sealed  instrument    where    the 
words  import  an  agreement.   United 
States  v.  Brown,  1  Paine  (U.  S.),  422. 
The  only  breach  that  can  be  assigned 
is  of  a  covenant  contained  in  the 
contract.    Merriam  v.  Bush,  116  Pa. 
St.  276.    It  must  be  alleged  that  the 
instrument  is  under   seal.     Bilder- 
back  v.  Pouner,  7  N.  J.  L.  64.    The 
covenant  may  be  set  out  in  his  own 
words,  but  this  is  not  necessary.    It 
is  enough  if  a  substantial  breach,  is 
shown.    Fletcher  v.  Peck,  6  Cranch, 
87;  C.,  M.  &  St.  P.  R  Co.  v.  Hoyt,  37 
J1L  App.  64, 


3  So,  also,  statutes  destroy  the  dis- 
tinction by  direct  declaration.   Brad- 
ley Salt  Co.  v.  Norfolk,  etc.  Ry.  Co. 
(1898),  95  Va.  461. 

4  To  maintain  detinue  or  the  cor- 
responding statutory  action  for  the 
recovery  of  chattels  in  specie,  the 
plaintiff  must  be  clothed  with  the 
legal  title  and  the  right  to  the  posses- 
sion of  the  goods  sued  for.  Boulden  v. 
Estey  Organ  Co.,  92  Ala.  182;  Graham 
v.  Meyers,  74  id.  432;   Robinson  v. 
Peterson,  40  111.  App.  132. 

In  order  that  the  plaintiff  may  re- 
cover it  is  necessary  to  show  not  only 
that  he  is  entitled  to  the  possession 
of  the  property  claimed  in  his  decla- 
ration, but  also  that  said  property  is 
personalty.  McFadden  v.  Crawford, 
36  W.  Va.  671.  But  a  mere  wrong- 
doer is  not  permitted  to  question  the 
title  of  one  from  whose  possession  he 
took  the  goods.  Huddleston  v.  Huey, 
73  Ala.  215. 

A  detention  may  be  included  in  a 
trespass  or  conversion;  but  there 
may  be  a  detention,  sufficient  to  sup- 
port detinue,  when  there  has  been 
neither  a  trespass  nor  a  conversion, 
and  when  neither  trover  nor  trespass 


80.] 


PROCEEDINGS    IN   AN   ACTION. 


127 


quent  use  than  any  of  the  other  personal  actions  above  enu- 
merated. The  form  of  the  writ  is  as  follows :  [Omitted.] 

[In  detinue  the  cause  of  action  is  the  detention,  and  the  action 
was  originally  brought  only  when  the  taking  was  lawful.1  But 
this  rule  is  generally  changed,  or,  in  the  substituted  action  of 
replevin,  the  taking  may  have  been  lawful  or  unlawful.2  A 
change  of  the  theory  of  the  action  to  one  seeking  damages  for 
unlawful  taking  or  detention  would  change  the  cause  of  ac- 
tion.3] 

§  80.  The  writ  of  trespass  [vi  et  armis]  lies  where  a  party 
claims  damages  for  a  trespass  committed  against  him,  A  tres- 
pass is  an  injury  committed  with  violence;  and  this  violence 
may  be  either  actual  or  implied;  and  the  law  will  imply  vio- 
lence though  none  is  actually  used,  where  the  injury  is  of  a 
direct  and  immediate  kind,  and  committed  on  the  person,  or 
tangible  and  corporeal  property,  of  the  plaintiff.  Of  actual  vio- 
lence, an  assault  and  battery  is  an  instance;  of  implied,  a 


could  be  maintained.  Wittick  v. 
Traun,  27  Ala.  562;  Schulenberg  v. 
Campbell,  14  Mo.  491. 

The  action  may  be  maintained 
though  the  defendant  has  parted 
with  the  possession  of  the  chattel 
sued  for.  See  Caldwell  v.  Fenwick, 
2  Dana,  333;  Haley  v.  Rowan,  5 
Yerg.  301.  And  where  the  property 
perishes  pending  the  suit,  the  plaint- 
iff may  recover  the  alternative  value 
unless  the  defendant  pleads  the  fact 
puis  darrein  continuance,  Arthur 
v.  Ingels,  34  W.  Va.  639. 

Detinue  may  be  maintained  for 
the  detention  of  things  severed  from 
the  freehold  and  converted  into  chat- 
tels so  long  as  the  identity  of  the 
original  material  can  be  traced. 
Cooper  v.  Watson,  73  Ala.  252.  See 
Election  of  Remedies.  A  public  office 
is  not  property;  its  value  cannot  be 
measured.  Detinue  will  not  lie  for 
the  delivery  of  a  commission  against 
another  officer  who  wrongfully  re- 
fuses to  issue  it.  Mandamus  is  the 


proper  remedy.  Marbury  v.  Madison, 
1  Cranch,  137. 

The  judgment  is  in  the  alternative: 
first,  that  the  plaintiff  do  recover  the 
goods  in  question,  specifically;  or,  if 
he  cannot  have  the  goods,  that  he 
recover  the  value  thereof,  and  his 
damages  for  the  detention.  See 
Greene  v.  Lewis,  85  Ala.  221,  7  Am. 
St.  R.  42. 

The  common-law  action  of  detinue 
may  be  maintained  in  New  Hamp- 
shire. Dame  v.  Dame,  43  N.  H.  37. 
This  form  of  action  is  still  in  force 
in  Illinois;  and  replevin  is  not,  in  all 
cases,  an  available  substitute  for  it. 
Robinson  v.  Peterson,  40  111.  App.  132. 
In  New  York  and  some  other  states 
the  action  has  been  replaced  by  some 
other  covering  substantially  the 
same  ground.  See  Harris  v.  Hillman, 
26  Ala.  380. 

1  Dame  v.  Dame,  43  N.  H.  37. 

2  Steamship  Co.  v.   Sheahan,  123 
N.  Y.  461. 

» Id. 


128  CAUSES   AND   FOBMS   OF   ACTION.  [§  80. 

peaceable  but  wrongful  entry  upon  the  plaintiff's  land.  The 
form  of  the  writ  is  as  follows:  [Omitted.] 

[The  cause  of  action  in  trespass  is  in  many  cases  extremely 
difficult  to  distinguish  from  the  cause  of  action  in  trespass  on 
the  case,  and  in  most  states  the  distinction  in  the  form  of  ac- 
tion is  abolished;1  but  in  many  cases,  where  the  damage  is 
occasioned  by  force,  the  same  facts  will  permit  a  choice  as  to 
what  incidents  the  plaintiff  will  choose  as  the  gist  of  the  ac- 
tion—  the  negligence  or  wilful  intent  of  the  defendant,  or  the 
forcible  act,  i.  e.,  the  force  and  arms ;  and,  in  order  to  indicate 
this  difference  in  the  theory  of  the  case,  a  difference  in  the  plead- 
ing is  required.  For  example,  where  one  negligently  drives 
his  carriage  against  the  carriage  of  another,  damaging  it,  the 
latter  may  select  as  his  cause  of  action  the  negligence  (i.  e., 
the  defendant  omitted  his  duty  of  care),  and  claim  that  the 
damage  was  consequential,  and  frame  his  action  as  in  case,  or 
he  may  base  his  case  on  the  forcible  invasion  of  his  right  to 
security  and  regard  the  damage  as  the  direct,  immediate  re- 
sult of  the  force,  on  which  theory  the  action  is  trespass  vi  et 
armis? 

The  criterion  for  distinguishing  trespass  from  any  other 
wrongful  interference  with  person  or  property  is  not  force 
simply,  but  the  relation  of  the  force  to  the  injury.  If  the  di- 
rect result  of  the  unlawful  forcible  act  causes  damage,  trespass 
lies;  if  the  damage  is  remote  and  the  first  act  unlawful,  the 
action  is  case.3  The  act  must  be  voluntary ;  but,  as  shown  by 
Guille  v.  Swan,4  this  is  only  in  a  qualified  sense.  If  the  act 
done  is  voluntary,  it  is  not  necessary  that  the  party  knew  it 
was  unlawful.  Thus,  if  he  carry  away  the  chattels  of  another 

iPost,  p.  131,  note  3.  nection  with  a  great  English  case, 

2  The  arguments  and  opinion  in  viz. :  the  Squib  Case.    Scott  v.  Shep- 

Percival  v.  Hickey,  18  John.  257,  go  perd,  2  Win.  Black.  892;  s.  C.  reported 

very  thoroughly  into  the  distinction  in  3  Wils.  403,  4  Smith's  L.  C.  796; 

between  case  and  trespass,  and  the  Cotteral  v.  Cummins,  6  S.  &  R.  343; 

statement  at  page  289  is  singularly  Guille  v.   Swan,  19   Johns.   381,  10 

clear  and  apt  to  express  the  distinc-  Am.  Dec.  234    A  wrongful  intent  is 

tion  in  substance  which  survives  the  not  necessary.    Ricker  v.  Freeman, 

abolition  of  forma  50  N.  H.  420,  9  Am.   R   267.    See 

»  Percival  v.  Hiokey,  supra.    The  Cooley  on  Torts  (2d  ed.),  *439. 

question  is  always  discussed  in  con-  4 19  Johns.  381. 


§  80.]  PROCEEDINGS    IN   AN   ACTION.  129 

supposing  them  to  be  his  own.1  But  the  intent  may  be  mate- 
rial in  determining  whether  an  act  which  may  be  either  lawful 
or  unlawful  is  a  trespass ; 2  <?.  g.,  an  entry  in  another's  private 
room  uninvited  out  of  curiosity  is  a  trespass,  while  one  has  an 
implied  license  to  visit  his  neighbors  or  to  enter  stores,  offices, 
etc.  In  all  such  cases  intention  may  characterize  the  act.8 
But  the  act  must  have  been  wrongful  in  the  beginning,  or  be- 
come so  by  an  act  making  it  a  trespass  ab  initio;  the  mere  re- 
taining of  possession,  though  unlawful,  will  not  be  ground  for 
this  action.4 

Species  of  trespasses  vi  et  armis. —  There  are  three  species  of 
this  action,  distinguished  by  reason  of  the  principal  subject  of 
the  action. 

Trespass  to  the  person,  as  assault,  assault  and  battery,  false 
imprisonment,  and  the  like  cases,  where  actual  or  implied  force 
is  always  present,  though  it  may  be  slight  or  not  offensively 
used.  It  is  an  appropriate  remedy  with  case  for  seduction  in 
cases  when  there  were  no  grounds  for  trespass  quare  clausum? 

Trespass  de  lonis  asportatis  is  brought,  not  to  recover  the 
identical  thing  taken,  but  damages  for  the  illegal  taking  and 
loss  of  the  same  when  the  original  taking  is  forcible  and  un- 
lawful ;  while  trover  is  the  remedy  for  the  unjust  detention 
and  conversion  of  property,  although  the  original  taking  was 
lawful  and  proper.6  To  maintain  trespass  to  personal  property 
the  plaintiff  must  have  possession,  or  the  right  to  immediate 
possession,  or  constructive  possession.7 

Trespass  quare  clausum  fregit  is  the  remedy  for  all  forcible 
entries  upon  land  by  persons  not  entitled  to  the  possession. 
But  since  the  enactment  of  the  statutes  against  forcible  entry 
and  detainer,  it  has  been  held  by  some  courts  that  trespass 
will  lie  for  a  forcible  entry  by  the  owner  against  the  will  of 
one  in  possession,  while  other  courts  hold  the  contrary.8  The 

iCooley   on    Torts   (2d  ed.),  438;  post,  Trespass  on  the  Case;  Sampson 

Brown  v.  Kendall,  6  Gush.  292.  v.  Smith,  15  Mass.  365. 

2  Tanning  v.  Chase,  17  R.  L  888;  6See  Dame  v.  Dame,  43  N.  H.  37. 

Morgan  v.  Andrews,  107  Mich.  33.  7  Howell  v.  Caryll,  50  Mo.  App.  440. 

8  Cooley  on  Torts,  *303.  8  The  English  decisions  are  not  in 

*Averellv.  Smith,  17  WalL  91;  Polk  harmony  upon  the  question.    That 

v.  Henderson,  9  Yerg.  310.  the  action  will  lie  is  held  in  Reedy  v. 

5  See  1  Chitty,  PL  *140-41.    Also  Purdy,  41  IlL  279;  Duster  v.  Cowdry, 


130  CAUSES   AND   FOKMS   OF   ACTION.  [§  80. 

gist  of  trespass  quare  clausum  fregit  is  injury  to  the  possession. 
Title  may  come  in  question,  but  it  is  not  essential  that  it 
should.1  Where  one  is  entitled  to  the  exclusive  profits,  or 
crops  growing  on  land,  this  is  equivalent  to  a  right  of  posses- 
sion, and  he  may  maintain  trespass  quare  clausum?  At  com- 
mon law  he  must  have  had  actual  possession,  but  possession  is 
now  held  to  follow  ownership.*  And  the  owner  may  main- 
tain an  action  for  trespass  to  lands  unless  another  held  the 
possession  under  him  at  the  time  the  act  was  committed,  or 
unless  it  Was  held  in  adverse  possession  by  another.4  A  lessee 
under  a  void  lease  may  maintain  the  action  against  a  wrong- 
doer.5 At  common  law  one  in  possession  against  the  right  of 
the  owner  could  not  maintain  the  action  for  an  entry  by  him.6 

Trespass  quare  clausum  fregit  was  deemed  an  appropriate 
remedy  for  seduction,  where  the  seduction  took  place  on  the 
premises  of  the  parent  or  master.  The  seduction  was  shown 
in  aggravation  of  the  breaking,  the  declaration  alleging  per 
quod  servitium  amisit.  It  was  early  held  that  a  count  for  tres- 
pass and  a  count  stating  the  debauchery  might  be  joined.  Now 
either  an  action  of  trespass  vi  et  arinis  may  be  maintained,  or 
an  action  on  the  case  founded  merely  on  the  consequences  of 
the  seduction.7 

In  trespass  quare  clausum  with  an  allegation  of  other  wrongs,, 
etc.,  when  the  real  cause  of  action  was  the  seduction  of  plaint- 
iff's daughter,  if  the  defendant  justified  the  unlawful  entry 
under  a  license  from  the  plaintiff,  the  latter  may  new  assign 

23  Vt.  635.    The  contrary  is  held  in  *  Collins  v.  Beatty,  148  Pa.  St.  65. 

Hyatt  v.  Wood,  4  John.  150,  4  Am.  5  Graham  v  Peat,  1  East,  244;  Stahl 

Dec.  258;  Tribble  v.  Frame,  7  J.  J.  v.  Grover,  80  Wis.  650. 

Marsh.   598,  23  Am.  Dec.  439.    See  6  See  Forcible  Entry  and  Detainer; 

Forcible  Entry  and  Detainer.  1  Chitty,  195;  Stahl  v.   Grover,  80* 

1 1   Chitty,   PL    195;   Lambert   v.  Wis.  650. 

Stroother,    Willes,    221;     Stahl    v.  7  Blagge  v.  Ilsley,  127  Mass.  191,  34 

Grover,  80  Wis.  650.  Am.  R.  361;  White  v.  Murtland,  71 

2  Wilson  v.  Mackreth,  3  Burr.  1824;  111.  250;  Parker  v.   Meek,  3    Sneed 

Stultz  v.  Dickey,  5  Binn.  285;  Myers  (Tenn.),  29;  Ellington  v.  Ellington,  47 

v.  White,  1  Rawle,  353.  Miss.  329.    See  Hubbell  v.  Wheeler,  2 

s  Smith  v.  Wunderlich,  70  111  426;  Aiken  (Vt),  359;  Vanhorn  v.  Free- 
Chandler  v.  Spear,  22  Vt.  383;  Dean  man,  6  N.  J.  L.  322  and  note;  Mar- 
v.  Comstock,  32  III  173;  2  Waterman  tinely  v.  Gerber,  2  M.  &  G.  88. 
on  Trespass,  358:  Yahoola  River  Co. 
v.  Irby,  40  Ga.  479. 


§81.] 


PROCEEDINGS    IN    AN   ACTION. 


131 


the  seduction  as  the  real  cause  of  action ;  and  if  the  license  was 
merely  the  implied  license  of  law,  *.  <?.,  by  custom,  the  recovery 
would  cover  the  whole  declaration  by  the  doctrine  of  trespass 
db  initio;  otherwise  if  the  license  was  an  express  invitation.1] 
§  81.  The  writ  [action]  of  trespass  upon  the  case  lies  where 
a  party  sues  for  damages 2  for  any  wrong  or  cause  of  complaint 
to  which  covenant  or  trespass  will  not  apply,  (i) 3  This  action 

(i)  It  is  not  easy  to  give  a  short  and  sufficiently  comprehensive  definition  of  the  scope  of 
this  action.  That  which  is  here  attempted  is  perhaps  new,  and  is  believed  to  be  accurate. 
A  definition  somewhat  similar  is  given  in  3  Woodd.  167. 


1  Hubbell  v.  Wheeler,  2  Aik.  (Vt.) 
359;  Moran  v.  Dawes,  4  Cow.  412. 

2  The  student  will  before  this  have 
observed  that  the  objects  of  the  vari- 
ous  actions    are    different.      Some 
seek  the    specific  thing,  some   the 
money  due  according  to  contract, 
others  damages  for  breach  of  the 
contract. 

3  Griffin   v.   Far  well,  20    Vt.   151. 
"  Case,"  says  Mr.  Justice  Swayne,  "  is 
a   generic    term    which    embraces 
many  different  species  of  action." 
This  action  originated  in  the  manner 
pointed  out  by  an  author  whom  he 
cites.    But   its   complete    establish- 
ment was  'resisted  through  several 
reigns.  Blackstone  thought  that  one 
of  the  most  important  amendments 
of  the  law  during  the  century  in 
which  he  lived  was  effected  by  ex- 
tending the  equitable  writ  of  tres- 
pass on  the  case,  according  to  its 
primitive  institution  by  Edward  L, 
to  almost  every  instance  of  injustice 
not  remedied  by  any  other  process. 
Carroll  v.   Greene,  92  U.   S.  509;  4 
Cooley's  Black.  (4th  ed.)  442. 

Comparing  the  court  of  equity 
with  the  courts  of  law,  Blackstone 
remarks  that  the  "  rules  of  decision 
are  in  both  courts  equally  apposite 
to  the  subjects  of  which  they  take 
cognizance  where  the  subject-matter 
is  such  as  requires  to  be  determined 
secundum  equum  et  bonum;  as  gener- 
ally upon  actions  on  the  case  the 


judgments  of  the  courts  of  law  are 
guided  by  the  most  liberal  equity." 
This  action  of  trespass  or  transgres- 
sion is  an  universal  remedy  given  for 
all  personal  wrongs  and  injuries 
without  force,  so  called  because  the 
plaintiff's  whole  case  or  cause  of 
complaint  is  set  forth  at  length  in 
the  original  writ.  8  Cooley's  Black. 
(3d  ed.)  122. 

As  to  the  distinguishing  features 
of  trespass  on  the  case,  see  Jordan  v. 
Wyatt,  4  Gratt.  151, 47  Am.  Dec.  720; 
Carleton  v.  Cate,  56  N.  H.  130;  Hunt 
v.  Pratt,  7  R.  L  283;  Cooper  v.  Chitty, 
1  Burr.  35;  1  Sutherland  on  Dam. 
(3d  ed.)  20,  61;  Cooley  on  Tort,  *439. 

The  element  of  force  may  or  may 
not  be  present.  When  it  exists,  and 
the  injury  results  directly  from  the 
force,  the  action  is  trespass,  but  when 
the  injury  is  remote  the  action  is 
case.  The  original  act  may  even  be 
lawful  per  se.  So  as  we  have  seen, 
in  treating  the  election  of  remedies, 
a  contract  may  be  involved,  but 
neither  the  force  nor  the  contract  is 
the  ground  and  basis  of  the  action. 
See  3  Cooley's  Black.  (3d  ed.)  122, 
note;  Cooley  on  Tort  (2d  ed.),  75. 

Statutes  have  been  passed  in  vari- 
ous states  abolishing  the  distinc- 
tion between  the  forms  of  action 
of  trespass  and  trespass  on  the 
case,  and  in  some  cases  including 
trover.  In  Illinois  the  courts  have 
construed  the  statute  to  mean  only 


132  CAUSES    AND   FOKMS    OF   ACTION.  [§  81. 

originates  in  the  power  given  by  the  statute  of  Westminster  2  to 
the  clerks  of  the  chancery  to  frame  new  writs  in  consimili  casu 
with  writs  already  known.  (&) l  Under  this  power  they  con- 
structed many  writs  for  different  injuries,  which  were  con- 
sidered as  in  consimili  casu  with,  that  is,  to  bear  a  certain 
analogy  to,  a  trespass.  The  new  writs  invented  for  the  cases 
supposed  to  bear  such  analogy  have  received,  accordingly,  the 
appellation  of  writs  of  trespass  on  the  case  (brevia  de  transgres- 
sione  super  casum\  as  being  founded  on  the  particular  cir- 
cumstances of  the  case  thus  requiring  a  remedy,  and  to  dis- 
tinguish them  from  the  old  writ  of  trespass;  (1)  and  the  injuries 
themselves,  which  are  the  subject  of  such  writs,  are  not  called 
trespasses,  but  have  the  general  names  of  torts,  wrongs  or 
grievances.  The  writs  of  trespass  on  the  case,  though  invented 
thus,  pro  re  nata,  in  various  forms,  according  to  the  nature  of 
the  different  wrongs  which  respectively  called  them  forth, 
began,  nevertheless,  to  be  viewed  as  constituting,  collectively, 

(fc)  Supra,  p.  110. 

(I)  3  Reeves,  89,  248,  391.  The  first  example  in  the  books  of  this  kind  of  action  (viz.,  tres- 
pass on  the  case)  that  has  been  noticed  by  Mr.  Beeves  occurs  in  the  reign  of  Edward  HI. 
22  Ass.  41. 

that  it  allowed  the  plaintiff  to  call  these  was  held  to  change  the  substan- 
his  writ  or  declaration  by  any  name,  tial  elements  of  the  action  and  allow 
and  need  not  conform,  or  might  join  a  recovery  in  trespass  de  "bonis  aspor- 
the  actions,  but  that  it  did  not  abro-  tatis  when  the  plaintiff  had  no  pos- 
gate  the  rule  that  requires  that  the  session.  Coe  v.  English,  6  Houst. 
proof  adduced  must  conform  to  the  (DeL)  456.  And  in  one  code  state  it 
allegations  of  the  declaration;  and  if  was  held  that  under  $ie  code  abol- 
the  facts  set  forth  should  be  trespass,  ishing  all  forms  of  action,  a  com- 
or  were  a  special  count  in  case,  that  plaint  for  conversion  was  sustained 
proof  of  a  cause  of  action  in  case  by  proof  which  would  sustain  an  im- 
would  not  support  an  action  with  plied  assumpsit  only.  Gates  v.  Ken- 
force  and  arms,  and  vice  versa.  Bla-  dall,  67  N.  C.  241.  But  as  we  shall 
lock  v.  Randall,  76  111.  228;  Bassett  see,  the  decisions  of  the  courts  of 
v.  Brattou,  86  id.  152;  Barker  v.  Koo-  Pennsylvania,  Delaware  and  North 
zier,  80  id.  205.  But  in  other  juris-  Carolina  are  opposed  to  every  prin- 
dictions  it  has  been  held  that  a  plaint-  ciple  of  pleading  and  not  in  harmony 
iff  might  declare  for  a  trespass  with  with  the  weight  of  authority  in  code 
force  and  arms  and  recover  without  or  common-law  states.  The  Illinois 
proof  of  the  declaration  by  proving  statute  and  decisions  approach  very 
a  cause  of  action,  which  would  en-  closely  to  the  code,  and  the  decisions 
title  him  to  a  judgment  had  he  de-  are  in  harmony  with  the  weight  of 
clared  in  case  (Duffield  v.  Rosen-  authority.  See  Allegata  et  Probata 
zweig,  144  Pa.  St.  520);  while  in  a  and  Variance. 
Delaware  case  a  statute  similar  to  1See  Andrews'  Am.  Law,  p.  1049. 


§82.] 


PROCEEDINGS    IN    AN   ACTION. 


133 


a  new  individual  form  of  action;  and  this  new  genus  took  its 
place,  by  the  name  of  trespass  on  the  case,  among  the  more 
ancient  actions  of  debt,  covenant,  trespass,  etc.  Such  being 
the  nature  of  this  action,  it  comprises,  of  course,  many  differ- 
ent species.  There  are  two,  however,  of  more  frequent  use 
than  any  other  species  of  trespass  on  the  case,  or  perhaps  than 
any  other  form  of  action  whatever.  These  are  assumpsit  and 
trover. 

§  82.  The  action  of  assumpsit  lies  where  a  party  claims 
damages  for  breach  of  simple  contract,  i.  e.,  a  promise  not  under 
seal.  Such  promises  may  be  express  or  implied', *  and  the  law 


i  Rudder  v.  Price,  1  H.  Black.  551. 
Assumpsit,  while  having  been  de- 
vised by  the  chancery  clerks  under 
their  power  to  frame  new  writs,  and 
consequently  being  in  its  origin  an 
action  on  the  case,  yet  has  so  dif- 
ferent a  nature  and  foundation  from 
the  other  actions  that  it  is  now  com- 
monly classed  as  a  distinct  action  of 
a  distinct  nature,  i,  e.,  it  is  classed  as 
ex  contractu,  while  all  other  actions 
on  the  case  are  classed  ex  delicto. 
1  Chitty,  PL  *107  et  seq.;  Carter  v. 
White,  32  III  509.  The  sealing  or 
non-sealing  of  the  contract  has  a  de- 
termining influence  as  to  whether 
this  form  of  action  shall  be  brought, 
or  whether  covenant  or  debt  is  the 
proper  action.  Brown  v.  Perry,  14 
Ind.  32.  The  declaration  must  allege 
a  promise;  but  the  word  "promise" 
need  not  be  used:  any  equivalent 
word  or  facts  is  sufficient.  Avery  v. 
Tyringham,  3  Mass.  160;  Allen  v. 
Patterson,  3  Seld.  (N.  Y.)  476;  Davis 
v.  McCready,  17  N.  Y.  230;  Mass.  Ins. 
Co.  v.  Kellogg,  82  111.  614 

For  the  history  of  the  form  of  ac- 
tion on  the  case  and  the  special  form 
in  assumpsit,  see  Andrews'  Am.  Law, 
p.  1049. 

The  forms  of  assumpsit  are  only 
to  be  noticed  here,  and  are  shown  in 
the  outline.  They  are  of  two  classes : 
General  assumpsit,  so  called  simply 


because  there  are  general  forms  de- 
vised for  stating  the  various  causes 
of  action  most  commonly  arising, 
and  hence  these  forms  are  called  the 
common  counts.  These  common 
counts  were  again  classified,  because 
of  some  special  point  of  difference. 
While  all  are  for  the  recovery  of 
money,  the  distinguishing  feature  is 
the  manner  in  which  the  indebted- 
ness is  alleged  to  have  arisen  and  the 
promise  made.  In  indebitatus  as- 
sumpsit  the  defendant  is  alleged  to 
be  indebted  for  money,  on  account 
of  any  of  the  various  things  enumer- 
ated in  the  outline,  and  in  consider- 
ation of  such  indebtedness  promised, 
etc.  Indebitatus  assumpsit  will  not 
lie  when  a  special  contract  exists 
and  is  not  fully  performed.  Cutter 
v.  Powell,  6  T.  R.  320,  2  Smith's  L. 
C.  1,  notes;  Dermot  v.  Jones,  23 
How.  321;  Puterbaugh,  111.  PL  &  Pr. 
(5th  ed.)  69.  But  it  will  lie  to  re- 
cover the  stipulated  price  due  on  a 
contract  fully  performed.  Id. ;  Combs 
v.  Steele,  80  I1L  101. 

The  quantum  meruit  count  being 
generally  for  service  when  the  price 
is  either  not  fixed  or  the  contract 
fixing  it  is  not  the  basis  of  the  suit, 
the  plaintiff  alleges  that  he  per- 
formed services  only,  in  considera- 
tion whereof  the  plaintiff  promised, 
etc.  1  Chitty,  PL  *352. 


134: 


CAUSES   AND   FORMS    OF   ACTION. 


[§82, 


always  implies  a  promise  to  do  that  which  a  party  is  legally 
liable  to  perform.  This  remedy  is  consequently  of  very  large 
and  extensive  application. 

[The  necessity  for  understanding  the  distinction  between  the 
various  forms  of  asswnpsit,  as  explained  in  the  note,  is  just  as 
great  under  the  reformed  procedure  as  formerly,  for  the  rea- 
son that  the  theory  as  to  the  cause  of  action  alleged  governs 
the  court  in  hearing  evidence  and  rendering  judgment.  The 
proof  must  sustain  the  cause  of  action  alleged  or  there  is  not 


The  quantum  valebant  is  for  the 
value  of  goods  when  the  plaintiff  is 
not  bound  by  any  fixed  price  and 
alleges  a  sale,  which,  as  we  have  seen, 
may  have  arisen  by  waiving  a  tort, 
and  alleges  that  in  consideration 
thereof  the  defendant  promised  to 
pay,  etc.  1  Chitty,  PL  *352. 

Under  the  indebitatus  count  the 
plaintiff  may  recover  for  any  of  the 
things  mentioned  that  he  might 
under  the  quantum  meruit  or  quan- 
tum valebant  count,  and  these  counts 
are  no  longer  necessary.  1  Chitty, 
PL  *352.  The  insimul  computasset 
count  for  an  account  stated  recites 
that  the  defendant,  being  found  in- 
debted upon  an  account,  in  consid- 
eration thereof  promised,  etc.  Id. 

The  names,  however,  do  not  ex- 
press the  real  difference  between  gen- 
eral and  special  assumpsit.  The  dif- 
ference in  substance  is  this:  That  in 
general  assumpsit  the  cause  of  ac- 
tion is  never  based  upon  an  express 
contract,  no  matter  whether  there 
was  an  express  contract  or  not.  The 
recovery  is  based  upon  the  implied 
contract  to  pay.  The  contract  will 
prevent  the  plaintiff  from  recovering 
beyond  the  contract  price,  but  can- 
not be  used  by  him  to  prevent  the 
defendant  from  proving  mitigating 
facts  under  this  count.  Cutter  v. 
Powell,  1  Smith's  L.  C.  (8th  ed.)  46; 
Everett  v.  Gray,  1  Mass.  101.  Spe- 
cial assumpsit  is  always  based  upon 
an  express  contract.  Cutter  v.  Pow- 
ell, 1  Smith's  L.  C.  (8th  ed.)  46,  note. 


Special  assumpsit  is  the  only  ap- 
propriate remedy  to  recover  what  is 
due  upon  or  for  the  breach  of  an 
express  simple  contract  when  the 
plaintiff  grounds  his  cause  of  action 
upon  the  contract.  This  form  of 
count  differs  from  general  assumpsit 
in  this  point:  that  special  assumpsit 
lies  only  upon  an  express  contract 
which  is  especially  alleged,  while 
general  assumpsit  never  does.  There 
is  some  confusion  in  the  books,  and 
recent  writers  who  copy  them  seem 
to  have  followed  the  error;  but  the 
learned  editors  of  Smith's  Leading 
Cases  have  stated  the  matter  so 
clearly,  together  with  the  author- 
ity, that  there  is  little  left  but  to 
give  them  the  proper  credit.  They 
say:  "The  confusion  and  obscurity 
which  exist  in  the  books  in  relation 
to  this  matter  of  special  and  general 
assumpsit  have  arisen  from  an  erro- 
neous impression  that  when  there 
has  been  a  special  contract,  and  the 
plaintiff  brings  general  assumpsit, 
the  special  contract  of  the  defendant 
is  in  some  degree  or  to  some  extent 
the  ground  of  the  plaintiff's  recov- 
ery. This  impression  arises  from  an 
error  as  to  the  legal  nature  of  and 
ground  of  general  assumpsit,  which 
rests  only  on  a  legal  liability  spring- 
ing out  of  a  consideration  received." 
Cutter  v.  Powell,  2  Smith's  L.  C. 
(8th  ed.)  48,  notes;  2  Sutherland  on 
Dam.  508-9;  Kernstetter  v.  Raymond, 
10  Ind.  199. 


PROCEEDINGS    IN   AN   ACTION. 


135 


simply  a  variance  but  a  failure  of  proof,  even  though  the  evi- 
dence makes  a  good  case  on  another  form  of  assumpsit.l~] 

§  83,  The  action  of  trover  is  that  usually  adopted  (by  pref- 
erence to  that  of  detinue]  to  try  a  disputed  question  of  prop- 
erty 2  in  goods  and  chattels.3  In  form  it  claims  damages,  and 
is  founded  on  a  suggestion  in  the  writ  (which  in  general  is  a 
mere  fiction)  that  the  defendant/bwra#  the  goods  in  question, 
being  the  property  of  the  plaintiff;  and  proceeds  to  allege  that 
he  converted  them  to  his  own  use.4 

[Trover  is  based  upon  the  unlawful  conversion  of  the  plaint- 
iff's property.  The  original  taking  may  have  been  lawful  or 
unlawful,  peaceable  or  with  force,  but  the  gist  of  the  action  is 
converting  the  property.  This  may  be  by  actually  disposing 
of  it,  or  refusing  to  deliver  it  upon  request,  and  was  deemed 
prima  facie  evidence  of  conversion.5  Where  defendant  ac- 
quired possession  rightfully,  demand  and  refusal  must  be  shown,6 


1  Sanders  v.  Hartge,  17  Ind.  App. 
243. 

2  Trover  is  based  upon  a  strict  legal 
title  as  distinguished  from  an  equi- 
table one.     Tregoning  v.  Allenbor- 
ough,  7  Bing.  97;  Ramsdell  v.  Mor- 
gan, 16  Wend.  574;  Debow  v.  Colfax, 
10  N.  J.  L.  128.    But,  as  against  a 
stranger  to  the  title,  possession  is  suf- 
ficient evidence  of  property.    Pink- 
ham  v.  Gear,  3  N.  H.  484. 

8  The  action  will  not  lie  for  goods 
in  the  custody  of  the  law  under  legal 
process.  Jenner  v.  Joliffe,  9  Johns. 
381.  It  has  been  maintained  for  books 
of  record  and  seal  of  a  corporation, 
etc.  Dartmouth  College  v.  Wood- 
ward, 4  Wheat.  518.  It  will  lie  for 
cutting  and  carrying  away  corn 
standing  and  growing  (Nelson  v. 
Bart,  15  Mass.  204);  or  for  cutting 
and  carrying  away  trees.  But  it  does 
not  lie  in  such  cases  unless  there  is 
also  an  asportation.  Mather  v.  Trinity 
Church,  3  S.  &  R.  509.  It  will  lie 
for  specific  money.  Henry  v.  Sowles, 
28  Fed.  R.  521;  Stuart  v.  Harris,  69 
111  App.  668.  A  refusal  by  a  corpo- 
ration to  make  proper  transfer  of 
stock  purchased  is  a  conversion.  An- 


drews' Am.  Law,  p.  580;  Whidden  v. 
Seelye,  40  Me.  247. 

4  It  must  appear  that  the  conver- 
sion was  before  the  commencement 
of  the  suit.     Glenn   v.  Garrison,  17 
N.  J.  L.  1.   The  motive  of  the  defend- 
ant cuts  no  figure.    If  the  act  of  con- 
version or  the  refusal,  which  is  held 
evidence  of  it,  is  unlawful,  the  fact 
that  the  defendant  honestly  believed 
in  his  own  right  is  immaterial  except 
as  to  damages.    Carlton  v.  Lovejoy, 
54  Me.  445;  Hilt  v.  Snell,  104  Mass. 
177;  Campau  v.  Bemis,  So  111.  App. 
37;  Ramsdell  v.  Morgan,  16  Wend. 
574.    A  purchaser  in  good  faith  from 
one  who  has  no  title  will  be  guilty 
of  trover  for  actually  converting  the 
goods  or  refusing  to  deliver;  but  a 
purchaser  in  good  faith  from  one 
who  has  a  fraudulent  title  (though 
voidable)  is  not  guilty  of  conversion 
by  a   sale,  but  gets  a   valid  title. 
Ramsdell  v.  Morgan,  16  Wend.  574; 
Fawsett  v.  Osborn,  32  III  411;  Mon- 
tague v.  Ficklin,  18  111.  99. 

5  Draper  v.  Faulks,  YeL,  Metcalf's 
Notes,  166. 

6  Carleton  v.  Lovejoy,  54  Ma  445. 


136  CAUSES   AND   FORMS    OF   ACTION.  [§83. 

but  is  not  necessary  when  at  the  time  of  taking  the  plaintiff 
forbade  the  taking.1 

The  real  owner,  though  not  in  possession,  or  one  having  spe- 
cial interest  with  possession,  may  maintain  the  action.2  It  has 
been  held  that  a  co-tenant,  by  exercising  exclusive  dominion 
over  property  against  the  demand  of  another  tenant  in  com- 
mon, may  be  guilty  of  conversion.8  But  the  general  rule  is 
that  one  tenant  in  common  can  be  guilty  of  conversion  only 
by  destroying  the  property  or  selling  it  for  his  own  use.4 

Whenever  trespass  will  lie  for  taking  goods  of  the  plaintiff 
wrongfully,  trover  will  also  lie.5 

Modern  enlargement  of  trespass  on  the  case. —  Our  author  no- 
tices but  slightly  and  gives  but  a  single  instance  of  that  great 
class  of  actions,  embracing  so  many  instances,  so  familiar  under 
the  denomination  of  actions  on  the  case,  other  than  assumpsit 
and  trover.  It  is  the  most  usual  remedy  for  all  injuries  arising 
by  reason  of  negligence,  non-feasance  or  intentional  wrongs, 
with  or  without  force,  where  the  force  is  not  the  ground  of  the 
suit.6 

The  spirit  of  the  common  law  in  regard  to  the  protection  of 
the  citizen  is  to  afford  a  remedy  for  every  wrong,7  and,  acting 
in  accordance  with  this  policy,  the  courts  have  been  ingenious 
to  invent  actions  to  accomplish  the  purpose.  Under  the  equi- 
table action  of  assumpsit,  by  the  use  of  fictions,  Lord  Holt,  and 
after  him  Lord  Mansfield,  brought  that  branch  of  the  proced- 
ure to  a  high  degree  of  perfection,  and  the  action  on  the  case 
was  made  to  extend  to  every  legal  injury.  That  the  case  at 
bar  has  no  precedent  in  its  facts  does  not  weigh  against  it  if  it 
falls  within  established  principles.8  The  courts  recognize  that 
every  implement  of  progress  may  be  used  as  an  instrument  of 
mischief,  and  that  the  means  of  inflicting  injuries  are  as  infinite 

1  Waller  v.  Bowling,  108  N.  C.  289.  R.  A.  645;  also  Thomas  v.  Winchester, 

2  Mather  v.  Trinity  Church,  3  S.  &  6  N.  Y.  397,  57  Am.  Dec.  455;  Fletcher 
R.  509.  v.  Ryland,  L.  R.  3  H.  L.  Cas.  330;  Gar- 

3  Waller  v.  Bowling,  108  N.  C.  289.  land  v.  Town,  55  N.  H.  55,  20  Am.  R. 

4  Stancliff  v.  Hardwick,  2  C.,  M.  &  164 

Rl;  Alderson  v.  Schultz,  64  Wis.  46.  U  Chitty's  PL  *108;  Marbury  v. 

6 1  Chitty's  PL  153;  Drew  v.  Spauld-  Madison,  1  Cranch,  137. 

ing,  45  N.  H.  472;  German  Bank  v.  «1  Chitty's  PL  *108.  See  argument 

Meadowcroft,  95  I1L  124.  in  Denver,  etc.  Ry.  Co.  v.  Harris,  122 

«  Chambers  v.  Baldwin  (Ky.),  11  L.  U.  S.  601. 


§  83.]  PROCEEDINGS    IN   AN   ACTION.  137 

as  the  variety  of  human  ingenuity,  and  accordingly  every  gen- 
eration witnesses  the  introduction  of  novel  actions.  Among 
the  most  important  encroachments  on  old  ideas  is  the  concep- 
tion that  the  malicious  exercise  of  a  legal  right  with  a  defi- 
nite purpose  to  harm  another  in  a  legal  right  belonging  to 
him  may  sustain  an  action.1  Maliciously  persuading  one  to 
break  a  contract  with  a  third  person,  though  formerly  not 
actionable,  is  now,  by  some  courts,  held  to  be  so,  especially  if 
special  damage  follows;2  and  there  is  a  tendency  to  allow  an 
action  for  every  malicious  interference  with  the  rights  of  an- 
other, be  they  affairs  of  business 3  or  the  domestic  rights  of  the 
damaged  party.4 

Mental  and  nervous  injuries  (unaccompanied  by  physical 
violence)  resulting  from  negligent  omission,  such  as  failure  to 
deliver  death  messages,  or  careless  acts  causing  fright  and  con- 
sequent suffering  or  impairment  of  health,  have  been  the  sub- 
ject of  actions  in  recent  years,  and  in  some  jurisdictions  these 
actions  are  upheld,5  while  in  others  they  are  still  regarded  as 
of  so  uncertain  a  character,  either  as  to  the  injury  or  the  dam- 
age, that  they  are  denied.6 

The  cause  of  action  for  a  nuisance  is  remediable  by  means 
of  this  action;7  and  it  is  a  concurrent  remedy  with  eminent 
domain  proceedings  for  land  damaged  but  not  taken.8  In 
short,  all  consequential  damage,  where  the  cause  of  action, 
i.  e.t  the  legal  injury,  is  not  accomplished  by  force,  although  a 
direct  forcible  act  may  cause  the  damage.] 

1  Rich  v.  N.  Y.  C.  &  H.  R.  Ry.  Co.,        *  Bennett  v.  Bennett,  116  N.  Y.  584; 
87  N.  Y.  382;  Graham  v.  St.  Charles  Mehrhoff  v.  Merhoff,  26  Fed.  R,  13. 
Ry.  Co.,  47  La.  Ann.  214;  Flood  v.        6  Sloan  v.  Railway  Co.,  44  Pao.  R. 
Jackson,  11  Law  Times  R.  335.    For  322;  Purcell  v.  Railway  Co.,  48  Minn, 
discussion  of  rule  see  Chasemore  v.  134. 

Richards,  7  H.  L.  Cas.  349;  Pollock  «Braun   v.   Craven,   175   III  401; 

on  Torts  (4th  ed.),  p.  144;  Bo  wen  v.  Mitchell  v.  Railway  Co.,  151  N.  Y. 

Hall,  6  Q.  B.  D.  at  p.  338.    Of.  the  107;  Wyman  v.  Leavitt,  71  Me.  227; 

case  of  Bradford  v.  Pickles,  —  H.  L.  Ewing  v.  Railway  Co.,  147  Pa.  St. 

Cas.  — .  40. 

2  Morgan  v.  Andrews,  107  Mich.  33;  '  Brown  v.  Illius,  25  Conn.  582. 
Glencoe  Gravel  Co.  v.  Hudson  Bros.,  8  Penn  Mut  Ins.  Co.  v.  Heirs,  141 
138  Mo.  439.  Ill  61.    For  contrary  doctrine  as  to 

8  Conspiracy  to  injure  one  in  his  the  right  to  recover  for  such  an  in- 
business.  Doremus  v.  Hennessy,  176  jury,  see  Costigan  v.  Penn  Ry.  Co.,  54 
HL  608;  Jones  v.  Baker.  7  Cow.  445.  N.  J.  23& 


138  CAUSES   AND   FORMS    OF   ACTION.  [§  84. 

§  84.  Replevin. —  In  the  action  of  replevin  (which  is  the  last 
of  those  above  enumerated)  there  is  no  original  writ,  (m)  *  — 
this  action  not  being  commenced  in  the  superior  courts.  It  is, 
however,  entertained  there,  by  virtue  of  an  authority  which 
the  superior  courts  exercise  of  removing  suits,  in  certain  cases, 
from  an  inferior  jurisdiction,  and  transferring  them  to  their 
own  cognizance.  Where  goods  have  been  distreined,  a  party 
making  plaint  to  the  sheriff  may  have  them  replevied,  that  is 
redelivered  to  him,  upon  giving  security  to  prosecute  an  ac- 
tion against  the  distreiner,  for  the  purpose  of  trying  the  legal- 
ity of  the  distress ;  and  if  the  right  be  determined  in  favour 
of  the  latter,  to  return  the  goods.  The  action  so  prosecuted 
is  called  an  action  of  replevin,  and  is  commenced  in  the 
Bounty  court.  From  thence  it  is  removed  into  one  of  the  su- 
perior courts  by  a  writ  either  of  recordari  facias  loquelam 
or  accedas  ad  curiam.  (n)  In  form  it  is  an  action  for  damages 
for  the  illegal  taking  and  detaining  of  the  goods  and  chattels. 
It  is  held  that  a  replevin-may  be  had  and  an  action  of  replevin 
brought  upon  other  kinds  of  illegal  taking  besides  that  by 
way  of  a  distress ;  (o)  but  in  no  other  case  is  the  proceeding 
now  known  in  practice.8 

(m)  The  action  of  replevin  here  mentioned  is  that  by  plaint,  which  is  the  only  kind 
•known  in  practice.  There  was  anciently  in  use  another  species  of  replevin,  in  which  a  writ 
issued  out  of  the  court  of  chancery,  directed  to  the  sheriff.  This  writ,  however,  was  not 
returnable  into  a  superior  court,  nor  the  foundation  of  any  action  therein,  but  merely  re- 
quired the  sheriff  to  cause  the  goods  to  be  replevied.  2  Selwyn,  1053;  2  Inst.  139;  Register 
of  Writs. 

(n)  These  writs  vary  slightly  hi  their  form.  The  former  is  in  use  when  the  replevin 
was  commenced  hi  the  county  court;  the  latter,  when  commenced  in  the  court  of  a  lord. 
*  Selwyn,  1063. 

(o)  2  Selwyn,  1033;  1  Chitty,  159. 

1  Moor  v.  Watts,  Ld.  Raym.  617.  Mitchell  v.  Roberts,  50  N.  H.  486 ; 

2  This  action  is  regulated  by  statute  Hall  v.  Durham,  113  Ind.  327 ;  Odd 
in  almost  all  the  states.  Though  it  was  Fellows'  Hall  Ass'n  v.  McAllister,  153 
originally  devised  to  recover  goods  Mass.  292,  11  L.  R.  A.  172,  and  note, 
wrongfully  taken  by  way  of  distress,  Possession  of  the  officer  under  valid 
the    action    lies    generally  for  any  process  is  not  constructive  possession 
wrongful  taking  or  wrongful  with-  of  defendant    Richardson  v.  Reed, 
holding  of  any  sort  of  chattels,  ani-  4  Gray,  492 ;    Buck  v.  Colbath,  70 
mate    or    inanimate.      Burrage   v.  U.    S.    334;    Carroll  v.   Hussey,   31 
Melson,  48  Miss.  237 ;  Eddy  v.  Davis,  N.  C.  89 ;   Lemp  v.  Fullerton,  83  la, 
35  Vt  247.    It  is  brought  to  recover  192,  13  L.  R  A.  408,  and  note, 
possession,  and  lies  only  by  one  en-        Trespass  and  trover  seek  damages ; 
titled  to  possession  against  one  hav-  replevin,  the  thing  itself;  and  the 
•ing  actual  or  constructive  possession,  plaintiff  in  this  action,  by  giving  se- 


§85.] 


PROCEEDINGS   IN   AN   ACTION. 


139 


§  85.  Ejectment. —  The  reader  has  now  seen  the  form  of  the 
writs  in  the  most  usual  actions,  as  well  those  real  and  mixed 
as  personal;  but  it  is  proper,  before  proceeding  farther,  to 
explain  that  even  those  more  common  real  and  mixed  actions 
are  incomparably  less  frequent  than  the  ordinary  actions  of 
the  personal  class,  and  may  be  said  to  be  of  rare  occurrence. 
At  a  very  early  period,  indeed,  that  is,  soon  after  the  reign  of 
Ed.  III.,  (p)  the  two  former  kinds  of  remedy  began  gradually 
to  fall  into  neglect,  in  consequence  of  their  being  more  dila- 
tory and  intricate  in  their  forms  of  proceeding  than  personal 
actions,  and  of  their  being  cognizable  only  in  the  court  of 
common  pleas.  In  lieu  of  them,  recourse  was  had  to  certain 

(p)  Vide  Hale's  Hist,  of  Com.  Law,  176. 


curity,  recovers  possession  of  the 
property  at  the  beginning  of  the 
action.  The  articles  must  be  speci- 
fied. Snediker  v.  Quick,  11  N.  J.  L. 
179.  And  the  party  must  depend 
on  his  own  title,  not  on  the  weakness 
of  his  adversary's.  Stanley  v.  Neale, 
98  Mass.  343 ;  Gluck  v.  Cox,  75  Ala. 
810;  Holler  v.  Coleson,  23  III  App. 
324. 

To  make  the  remedy  complete  the 
plaintiff  may  recover  damages  for 
the  injury  done  in  the  taking  or 
withholding.  The  measure  of  the 
damages  is  the  value  at  the  time  of 
taking,  and  interest  thereon  to  date 
of  verdict  Hauselman  v.  Kegel,  60 
Mich.  540;  "Washington  Ice  Co.  v. 
Webster,  62  Me.  341;  Burrage  v. 
Melson,  48  Miss.  237.  Consequential 
damages  must  be  specially  alleged. 
Faget  v.  Brayton,  2  H.  &  J.  (Md.) 
350 ;  Burrage  v.  Melson,  supra. 

Replevin  in  the  cepit  could  be 
brought  at  common  law  only  when 
the  taking  was  wrongful-  and  where 
trespass  would  lie.  Rich  v.  Baker,  3 
Denio,  79;  Badger  v.  Phinney,  15 
Mass.  359,  8  Am.  Dec.  1105.  Re- 
plevin in  the  detinet  is  a  statutory 
action  and  lies  for  wrongful  deten- 
tion, the  manner  of  taking  being 
immaterial.  Ronge  v.  Dawson,  9 


Wis.  246 ;  Cobbey  on  Replevin,  §  51. 
The  defendant,  by  pleading  non  cepit, 
admits  property  in  the  plaintiff,  and 
cannot,  on  that  plea,  have  a  return. 
Holmes  v.  Wood,  6  Mass.  1.  But  he 
may  at  the  same  time  allege  prop- 
erty in  another.  Simpson  v.  Mo 
Farland,  18  Pick.  427,  29  Am.  Dec. 
602.  If  the  goods  are  obtained  on 
the  writ  the  declaration  should  al- 
lege that  the  defendant  "  detained ; " 
if  not,  the  allegation  should  be  that 
he  detains ;  and  in  the  former  case 
damages  will  be  recovered  up  to  the 
return;  in  the  latter,  for  the  value 
and  damages.  Porter  v.  North,  1 
Wm.  Saund.  347 ;  Wells  on  Replevin, 
§  670 ;  Fox  v.  Pricket,  5  Vroom  (N.  J.), 
13 ;  Lindauer  v.  Teeter,  41  N.  J.  I* 
255.  If  non  cepit  be  pleaded  the 
plaintiff  must  prove  that  the  defend- 
ant had  the  property.  Gray  v.  Parker, 
38  Mo.  160.  Under  non  cepit  the  de- 
fendant may  not  show  special  mat- 
ter in  justification.  Hopkins  v. 
Burney,  2  Fla.  42.  Non  detinet  is 
inappropriate  when  the  action  is  in. 
the  cepit.  Davis  v.  Calvert,  17  Ark. 
85.  Non  detinet  admits  the  wrong- 
ful taking.  Simmons  v.  Jenkins,  76 
III  479.  But  under  it  the  defendant 
may  show  title  iu  a  stranger.  Sied- 
enbach  v.  Riley,  111  N.  Y.  560. 


140  CAUSES  AND  FORMS   OF  ACTION.  [§  85. 

personal  actions,  which,  though  they  did  not  claim  the  specific 
recovery  of  land  (like  those  of  the  real  and  mixed  class),  were 
yet  attended  with  incidents  that  indirectly  produced  that  ben- 
efit. Of  these,  the  principal,  (#)  and  that  which  is  alone  re- 
tained in  modern  practice,  was  the  action  of  ejectment  —  (ejeotio 
firmce], —  a  species  of  the  personal  action  of  trespass,  (r)  in 
which  damages  were  claimed  by  a  tenant  for  a  term  of  years, 
complaining  of  forcible  ejection  or  ouster  from  the  land  de- 
mised, (s)  In  favor  of  this  mode  of  remedy,  the  courts  deter- 
mined that  the  plaintiff  was  entitled  not  only  to  recover  the 
damages  claimed  by  the  action,  but  should  also,  by  way  of 
collateral  and  additional  relief,  recover  possession  of  the  land 
itself  for  the  term  of  years  of  which  he  had  been  ousted,  (t) 

In  consequence  of  the  establishment  of  this  doctrine,  which 
gave  an  ejectment  an  effect  similar  to  that  of  a  real  or  mixed 
action,  claimants  of  land  were  led  to  have  recourse  to  it  in 
lieu  of  those  inconvenient  remedies.  Regularly,  indeed,  none 
could  resort  to  this  form  of  suit  but  those  who  had  sustained 
ouster  from  a  term  of  years,  such  being  the  shape  of  the  com- 
plaint;  but  it  was  rendered  much  more  extensive  in  its  appli- 
cation by  the  invention  of  a  fictitious  system  of  proceeding, 
which  enabled  claimants  of  land,  in  almost  every  instance, 
upon  whatever  title  they  relied  (whether  term  of  years  or 
freehold),  to  bring  their  cases  ostensibly  within  the  scope  of 
this  remedy.  This  fictitious  method,  being  favored  and  pro- 
tected by  the  courts,  passed  into  regular  practice;  and  the 
consequence  is,  that  ejectment  has  long  been  the  usual  remedy 
for  the  specific  recovery  of  real  property,  (u)  There  are  cases, 
however,  in  which  the  writ  of  right,  the  writ  of  dower,  and 
other  real  and  mixed  actions,  are  still  necessary,  and  to  which 
the  proceeding  by  ejectment  is  held  inapplicable;  and  it  may 
be  laid  down  generally,  on  this  subject,  that  whenever  the 

(q)  It  was,  however,  not  the  only  one.  The  action  of  forcible  entry,  given  by  the  stat. 
8  Hen.  VI.,  had  been  applied  to  this  purpose  before  the  recovery  of  possession  by  eject- 
ment came  into  practice.  Hale,  Hist.  Com.  Law,  p.  176. 

(r)  See  Appendix,  note  (3). 

(t)  This  action  is  said  by  Mr.  Adams  to  have  been  invented  in  the  reign  of  Ed.  EL,  or  in 
the  early  part  of  that  of  Ed.  HI.  Adams  on  Ejectment,  ch.  I,  p.  7. 

(0  This  is  said  to  have  been  determined  at  some  time  between  1455  and  1499.  See  Adams 
on* Ejectment,  ch.  i,  p.  9.  Hale  says  it  was  not  till  the  end  of  the  reign  of  Ed.  IV.  Hist. 
Com.  Law,  p.  175. 

(u)  See  the  whole  course  of  proceeding  in  an  ejectment,  perspicuously  stated,  8  Bl.  Com. 

Mi 


§85.] 


PROCEEDINGS    IN   AN   ACTION. 


141 


case  is  such  that  the  claimant  has  not  in  him  the  right  of 
entry,  (a?)  the  fiction  on  which  an  ejectment  rests  ceases  to  be 
allowable,  and  recourse  must  consequently  be  had  to  a  real  or 
mixed  action.1 

(x)  See,  as  to  this  point,  8  Bl.  Com.  174;  Adams  on  Ejectment,  ch.  I,  p.  84. 


1  Stephen  classes  this  as  a  personal 
action  by  reason  of  the  form  of  the 
writ.  See  note  3,  App.  But  it  is  gen- 
erally considered  a  mixed  action. 
See  1  Chitty,  *109 ;  Walker,  Am.  Law, 
543-559 ;  3  Cooley's  Black.  (3d  ed.)  204. 

By  the  common  law  ejectment  will 
lie  only  for  something  of  which  the 
sheriff  can  deliver  possession.  The 
following  rules  are  prescribed  as  the 
test :  (1)  The  thing  claimed  must  be 
a  corporeal  hereditament ;  (2)  aright 
of  entry  must  exist  at  the  time  of 
the  commencement  of  the  action; 

(3)  the  interests  must  be  visible  and 
tangible,  so  that  the  sheriff  may  de- 
liver the  possession  to  the  plaintiff. 
See  Newell  on  Ejectment,  17.    Now, 
the  statutes  generally  declare  when 
the  action  may  be  used. 

The  declaration  must  contain: 
(1)  The  title  of  the  court  and  the  real 
names  of  the  parties ;  (2)  a  descrip- 
tion of  the  premises  sufficiently  cer- 
tain to  enable  the  sheriff  to  deliver 
possession;  (3)  the  interest  which 
the  plaintiff  claims  in  the  premises; 

(4)  that  the  plaintiff  was  in  posses- 
sion of  the  premises  in  dispute  or 
entitled  to  such  possession ;  (5)  that 
the   defendant   unlawfully   entered 
upon  and  dispossessed  him  of  such 
premises,  and  that  he  withholds  the 
possession;  (6)  sufficient  allegations 
to  show  that  the  plaintiff  is  entitled  to 
rents  and  profits  or  damages,  if  such 
are   claimed;    (7)    the    conclusion, 
prayer  for  relief,  etc. 

As  to  the  description,  the  modern 

tendency  is  to  reduce  the  certainty 

required  within  the  more  moderate 

limits  which  experience  has  shown 

10 


to  be  reasonable  and  convenient 
Johnson  v.  Neville,  65  N.  C.  677.  See 
Sphung  v.  Moore,  120  Ind.  3 30, ; 
Winslow  v.  Cooper,  104  111.  235. 
Where  there  is  a  reference  to  other 
deeds  for  a  description,  such  deeds 
must  make  part  of  the  record.  Jack- 
son v.  Parkhurst,  4  Wend.  (N.  Y.) 
369. 

In  Colorado  and  New  York,  under 
the  code,  ejectment  may  be  brought 
whenever  it  would  lie  at  common 
law,  and  also  where  the  writ  of  right 
was  the  appropriate  remedy.  Simi- 
lar provisions  are  made  by  the  stat- 
utes of  Illinois —  a  common-law  state. 
In  New  Jersey  the  action  was  al- 
ways considered  on  the  same  footing 
with  the  writ  of  right.  Gardner  v. 
Sharp,  4  Wash.  (U.  S.)  609. 

The  action  may  be  brought  in  some 
states  by  any  plaintiff  >who  has  a 
right  of  entry  against  any  defendant 
who  obtains  the  estate.  McCann  v. 
Rathbone,  8  R.  L  297.  In  Michigan 
the  party  having  the  right  to  the 
present  possession  is  always  entitled 
to  recover  it  Covert  v.  Morrison,  49 
Mich.  133;  Berham  v.  Cook,  43  id. 
573.  The  plaintiff  must  have,  at  the 
time  of  commencing  the  action,  a 
valid  subsisting  interest  in  the  prem- 
ises claimed,  and  a  right  to  recover 
the  possession  thereof,  or  of  some 
share,  interest  or  portion  thereof,  to 
be  proved  and  established  at  the 
trial.  How.  (Mich.)  Stats.,  §  7790. 
See,  also,  the  statutory  provisions  in 
Illinois,  Iowa,  Indiana,  Tennessee, 
Virginia,  West  Virginia  and  Wiscon- 
sin, and  the  following  cases :  Barco 
v.  Fennell,  24  Fla.  378 ;  Asia  v.  Hiser, 


142 


CAUSES   AND    FORMS   OF   ACTION. 


[§86. 


§  86.  Return  of  the  writ. —  The  different  forms  of  original 
writs  and  actions  having  been  now  in  some  measure  ex- 
plained, it  is  time  to  consider  the  course  of  proceeding  upon 


the  original  writ. 

22  id.  378;  Kirk  v.  Hamilton,  102 
U.  S.  68;  Fears  v.  Merrill,  9  Ark.  559. 
But  against  a  trespasser  without 
color  of  title,  ejectment  may  be  main- 
tained on  proof  of  prior  possession. 
Bagley  v.  Kennedy,  85  Ga.  703; 
Hutchinson  v.  Perley,  4  CaL  33,  60 
Am.  Dec.  578;  Dothard  v.  Denison, 
27  Ala.  541 ;  Wilson  v.  Fine,  38  Fed. 
Rep.  789;  Smith  v.  Lorillard,  10 
Johns.  338 ;  McWhorter  v.  Heltzell, 
124  Ind.  129 ;  Am.  Mortg.  Co.  v.  Hop- 
per, 48  Fed.  Rep.  47 ;  Mobley  v.  Bon- 
ner,  59  Pa.  481. 

There  must  be  an  ouster  or  dispos- 
session of  plaintiff.  Aiken  v.  Bene- 
dict, 39  Barb.  400 ;  Reed  v.  Tyler,  56  111. 
288.  The  disseisin  of  things  corporeal 
must  be  by  entry  and  actual  dispos- 
session of  the  freehold.  Pedis  pos~ 
sessio  is  necessary.  Allen  v.  Holton, 
37  Mass.  465.  As  to  what  is  and 
what  is  not  a  sufficient  disseisin,  see 
Newell  on  Ejectment,  415  et  seq. 
But  under  the  statutes  of  some  states, 
in  the  case  of  vacant  lands,  the  ac- 
tion may  be  brought  against  one  not 
in  possession,  but  exercising  acts  of 
ownership,  or  claiming  title.  See 
Starr  &  Curtiss,  R  S.  111.  982.  Eject- 
ment cannot  be  maintained  for  a 
tract  of  land  of  part  of  which  the 
plaintiffs  are  in  possession.  Kribbs  v. 
Downing,  25  Pa.  399.  A  tenant  in 
common  may  maintain  the  action 
against  his  co-tenant  who  has  dispos- 
sessed him  (Moulton  v.  McDermott, 
80  Cal.  323;  Warfield  v.  Lindell,  30 
Mo.  273,  77  Am.  Dec.  614;  White- 
man  v.  Hyland,  40  N.  Y.  a  R  575), 
and  may  recover  the  entire  property 
from  a  trespasser.  Smith  v.  Smith, 
80  Cal.  624.  Until  the  settlement  of 
the  estate  an  administrator  may 


maintain  the  action.  Campau  v. 
Campau,  19  Mich.  116 ;  Miller  v.  Ho- 
berg,  22  Minn.  249;  McRae  v.  Mc- 
Donald, 57  Ala.  423;  Jones  v.  Billstein, 
28  Wis.  227 ;  Page  v.  Tucker,  54  CaL 
121. 

The  plaintiff  must  recover  upon 
the  strength  of  his  own  title,  and  not 
upon  the  weakness  of  his  adversary's. 
Love  v.  Simms,  22  U.  S.  515 ;  Clarke 
v.  Diggs,  28  N.  C.  159,  44  Am.  Dec. 
73;  Nelson  v.  Triplett,  81  Va,  238; 
Riggs  v.  Riley,  113  Ind.  208 ;  England 
v.  Hatch,  80  Ala.  247;  Fussell  v. 
Gregg,  113U.  a  550. 

An  equitable  title  will  not  support 
ejectment,  the  legal  title  alone  being 
recognized  as  the  ground  of  the  ac- 
tion. Ruffners  v.  Lewis,  7  Leigh,  720, 
80  Am.  Dec.  513;  Leonard  v.  Dia- 
mond, 31  Md.  541 ;  Eaton  v.  Smith, 
19  Wis.  537;  Smith  v.  Hunt,  13  Ohio, 
260,  42  Am.  Dec.  201.  So  under  the 
code  in  Nebraska.  Dale  v.  Hunne- 
man,  12  Neb.  221.  This  is  the  rule 
of  the  federal  courts.  Langdon  v. 
Sherwood,  124  U.  S.  74;  Oaksmith 
v.  Johnson,  92  id.  343 ;  Smith  v.  Mc- 
Cann,  65  id.  398.  Neither  equitable 
titles,  it  was  said  in  a  late  case  in 
Michigan,  nor  equitable  defenses, 
can  avail  as  a  basis  either  of  recov- 
ery or  of  defense.  McKay  v.  Will. 
iams,  67  Mich.  547.  In  Pennsyl- 
vania, before  the  equity  court  was 
created,  an  equitable  title  would 
support  the  action.  Swayze  v.  Burke, 
37  U.  S.  11.  And  in  Missouri  the 
statutes  allow  the  action  to  be 
brought  on  incomplete  titles,  such 
as  land  warrants.  Fenn  v.  Holme, 
62  U.  S.  21.  See,  also,  Dodge  v.  Spier, 
85  Ga.  585;  Merrill  v.  Dearing,  47 
Minn.  137.  Under  the  codes  any  de- 


§  87.]  PROCEEDINGS   IN   AN    ACTION.  143 

Supposing  it  to  be  duly  issued  and  executed  on  the  defend- 
ant, it  is  next  to  be  returned. 

It  will  be  seen  on  inspection  of  the  tenor  of  these  instru- 
ments that  the  sheriff  is  commanded  to  have  the  writ  itself 
in  court  on  a  certain  day,  viz. :  the  day  on  which  the  defend- 
ant is  directed  to  appear  there.  On  that  day  the  writ  is  said 
to  be  returnable,  and  it  is  called  the  return  day  of  the  writ. 
In  each  of  the  terms,  except  Easter,  there  are  four  stated  days 
called  general  return  days;  in  that  term  five ;  and  on  one  or 
other  of  these  general  return  days  an  original  writ  must  be 
always  made  returnable.  On  the  return  day  it  is  the  duty 
of  the  sheriff  to  remit  the  writ  into  the  superior  court  of  com- 
mon law,  with  his  return;  that  is,  a  short  account  in  writing 
of  the  manner  in  which  he  has  executed  it. 

§  87.  Process. —  If  the  defendant  does  not  appear  in  obedi- 
ence to  the  original  writ,  there  issues,  when  the  time  for  ap- 
pearance is  past,  other  writs,  also  returnable  on  some  general 
return  day  in  the  term,  called  writs  of  process,  enforcing  the 
appearance  of  the  defendant  either  by  attachment  or  distress 
of  his  property,  or  arrest  of  his  person,  according  to  the  nat- 
ure of  the  case.  These  differ  from  the  original  writ  in  the 
following  principal  particulars:  they  issue  not  out  of  chan- 
cery, but  out  of  the  court  of  common  law,  into  which  the 
original  is  returnable;  and  accordingly  are  not  under  the 
great  seal,  but  the  private  seal  of  the  court;1  and  they  bear 

fense  that  the  party  has  may  be  set  Wis.  84 ;  Minke's  Lessee  v.  McNamee, 

forth.    Hicks  v.  Lovell,  64  Cal  17,  30   Md.  294.    At  common  law  the 

49  Am.  Rep.  679 ;  Shawhan  v.  Long,  damages  recoverable  were  nominal. 

26   Iowa,  488,    96    Am.   Dec.    164;  See  Rector  v.  Gain  es,  19  Ark.  90.    A 

Wicks  v.  Smith,  18  Kan.  508 ;  Ste-  claim  for  damages  for  withholding 

vens  v.  New  York,  84  N.  Y.  305.    An  the  freehold,  and  a  claim  for  rents 

exhaustive  treatment  of  the  subject  and  profits,  were  distinct    Larned  v. 

of  the  title  necessary  to  maintain  Hudson,  57  N.  Y.   151.     The  latter 

ejectment  may  be  found  in  the  note  might  be  recovered  in  an  action  of 

to  Hancock  v.  McAvoy,  18  L.  R.  A.  trespass  for  mesne  profits.    Herres- 

781.     See,  also,  Newell  on   Eject,  hoff  v.  Tripp,  15  R.  L  92.    But  in 

60  et  seq.  some  states  they  may  now  be  recov- 

The   judgment   must  follow  the  ered  in  the  main  action.    See  Gard- 

complaint    and    cannot    be    for    a  ner  v.  Jones,  34  Miss.  505. 

greater  interest  or  larger  quantity  1  There  is  no  other  process  in  our 

of  land.  Home  v.  Carter's  Adm'r.  20  courts  than  this  mesne  process. 
Fla.  45;  Riehl  v.  Bingenheimer,  28 


144  CAUSES  AND  FOKMS   OF  ACTION.  [§  87. 

teste  (that  is,  conclude  with  an  attesting  clause)  in  the  name 
of  the  chief  justice  of  that  court  and  not  in  the  name  of  the 
king  himself.  It  may  also  be  observed  that  in  common  with 
all  other  writs  issuing  from  the  court  of  common  law  during 
the  progress  of  the  suit,  they  are  described  as  judicial  writs, 
by  way  of  distinction  from  the  original  one  obtained  from 
the  chancery,  (y) 

On  these  writs  of  process  it  is  not  necessary  here  to  en- 
large ;  (2)  but  there  is  one  of  them  which  will  require  some 
specific  notice.  It  is  that  called  a  capias  ad  respondendum.1 
This  writ  directs  the  sheriff  to  enforce  the  appearance  of 
the  defendant  by  arrest  of  his  person;  and  it  lies  in  all  the 
most  usual  personal  actions.  It  is  connected  with  the  fol- 
lowing important  relaxation  of  practice  relative  to  the  orig- 
inal writ.  The  capias,  being  only  process,  is  of  course  reg- 
ularly issuable  only  after  an  original  writ  has  been  first  sued 
out  and  returned ;  but  to  save  time  and  expense,  (a)  it  has 
become  the  general  practice,  in  all  cases  where  it  lies,  to 
resort  to  it  in  the  first  instance^  and  to  suspend  the  issuing 
of  the  original  writ,  or  even  to  neglect  it  altogether,  unless 
its  omission  should  afterwards  be  objected  by  the  defendant. 
Thus  the  usual  practical  mode  of  commencing  a  personal 
acti-on  by  original  writ  is  to  begin  by  issuing,  not  an  original, 
but  a  capias.  It  will  be  convenient,  however,  to  explain  more 
particularly  the  manner  in  which  this  is  done.  In  the  king's 
bench  the  plaintiff's  attorney  commences  the  suit  by  prepar- 
ing a  draft  (called  aprcecipe)  of  the  original  writ,  appropriate 
to  the  proposed  action,  in  such  form  as  is  thought  most 
proper  and  conformable  to  precedent.  This  he  brings  to  the 

(jf)  Bract.  418;  8  Cooley's  Black.  (8d  ed.)  282. 

(z)  Full  information  on  this  subject  will  be  found  in  1  Tidd,  106-198,  4th  ed.;  1  Sellon, 
64-102. 

(a)  3  Bl.  Com.  281. 

1  Capias  is  very  generally  in  use  forcible   entry   upon   civil    process 

in  America,  but  is  not  so  broad  in  its  under   the    maxim,    "  every    man's 

application  now  as  formerly.    Very  house  is  his  castle."    Semayne's  Case, 

generally,  by  constitution  and  stat-  5  Coke,  91,  1  Smith's  I*  C.  238.    And 

utes,  imprisonment  for  debt  is  not  certain  persons,  i.  e.,  certain   men 

allowed,  and  it  is  only  in  cases  where  when  acting  in  some  capacity  other 

the  debt  was  incurred  by  fraud  or  than  for  their  own  private  interest, 

actions  of  tort  that  capias  may  issue,  are  privileged.    See  3  Cooley's  Black. 

Certain  places  are  privileged  from  (3d  ed.)  287-8,  note. 


§  87.]  PROCEEDINGS   IN   AN   ACTION.  145 

filacer  (an  officer  of  the  court  of  common  law,  whose  duty  it 
is  to  issue  the  capias  and  other  process  on  original  writs),  to 
serve  as  instructions  for  the  preparation  both  of  the  original 
and  the  capias.  To  prepare  or  issue  the  original,  indeed,  is 
not  the  duty  of  the  filacer,  but  of  the  cursitor  (an  officer  of 
the  court  of  chancery) ;  but  the  filacer  receives  the  prcecipe 
for  the  purpose  of  transmitting  it  afterwards  to  the  cursitor, 
as  instructions  for  the  latter  officer  to  prepare  an  original,  if 
it  should  become  necessary  to  issue  that  writ ;  (o)  and  accord- 
ingly, he  also  receives  from  the  plaintiff's  attorney,  on  behalf 
of  the  cursitor,  the  fine  which  is  payable  to  the  king,  on  ob- 
taining an  original,  (c)  In  the  meantime  and  without  waiting 
for  the  intended  original,  the  filacer  issues  the  capias  in  the 
form  marked  out  by  thepr&oiptj  and  after  this,  the  plaintiff 
having  no  actual  use  for  the  original,  it  is  seldom,  in  fact, 
taken  out  from  the  cursitor's  office.  In  the  common  pleas 
the  common  course  of  proceeding  is  similar  but  with  this 
difference:  that  the  prcBcipe  is  framed,  and  the  capias  made 
out,  in  a  form  not  varying  (as  in  the  king's  bench)  according  to 
the  form  of  action  really  intended  to  be  brought ;  but  always 
in  that  particular  form  of  action  called  trespass,  a  fictitious 
method,  pursued  in  a  view  to  cheapness  and  expedition,  (d) 
In  this  action  of  trespass  no  fine  is  payable  on  obtaining  the 
original  writ;  and  consequently  the  filacer  receives  none  from, 
the  plaintiff  upon  issuing  the  capias. 

Such  is  the  usual  practical  mode  of  commencing  personal 
actions  by  original  writ,  but  it  is  not  the  invariable  course, 
for  in  some  cases,  both  in  the  king's  bench  and  common  pleas, 
the  prcecipe  is  taken  to  the  cursitor,  and  the  original  writ 
regularly  made  out  and  issued ;  (e)  and  in  all  real  and  mixed 
actions,  and  also  in  personal  ones,  when  the  capias  does  not 
lie  the  same  regular  method  must  be  pursued.  And  even 
when  the  action  actually  commences  with  a  capias,  in  the 
manner  above  described,  it  is  to  be  observed  that  the  exist- 
ence and  issuing  of  an  original  is  still,  in  point  of  law,  always 
supposed;  that  instrument  being  in  principle  required  both 
as  authority  for  the  institution  of  the  suit  itself  and  for  the 

(b)  1  Tidd,  98,  4th  ed.;  1  Sellon,  212. 

(c)  Attornies1  Pract.,  Epit.  46. 

(d)  3  Bl.  Com.  281;  Sellon,  Introd.  xliil. 

<e)  E.  g.,  In  proceeding  to  outlawry.    1  Tidd,  98,  4th  ed.;  Attorn.  Pract.,  Epit.  87. 


146  CAUSES   AND   FORMS   OF   ACTION.  [§88. 

issuing  of  the  process.  Accordingly,  it  is  in  the  power  of  a 
defendant,  in  some  cases,  to  object  at  a  proper  period  of  the 
suit  that  no  original  writ  has  issued;  and,  upon  such  ob- 
jection, the  plaintiff  will  be  obliged,  retrospectively,  to  supply 
the  defect  by  obtaining  it  in  proper  form  from  the  cursitor's 
office.  (/) 

§  88.  Appearance  and  pleading  —  Ancient  practice. — 
Under  the  capias,  or  other  process,  the  defendant  is  compelled 
to  appear, —  either  by  force  of  actual  arrest  (where  the  law 
authorizes  that  proceeding),  or  by  other  methods  of  practice 
which  may  be  here  passed  over  as  belonging  to  the  law  of 
process.  This  appearance  shall  now  be  supposed  to  take 
place.  At  the  same  time  the  plaintiff  also  appears  and  the 
pleadings  commence.  The  next  subject  for  consideration, 
therefore,  shall  be  the  manner  in  which  the  parties  appear 
and  plead. 

Of  this  subject  it  is  impossible  to  obtain  a  clear  and  correct 
idea  without  some  preliminary  consideration  of  the  method 
of  appearance  and  pleading  anciently  in  use.  It  will  be  nec- 
essary, therefore,  here  to  give  a  short  account  of  that  method. 

As  now,  so  formerly,  the  defendant  was  made  to  appear  by 
original  writs,  and  process  founded  upon  them.  These,  as 
now,  were  returnable  in  term  time;  and  it  may  be  here  ob- 
served that  as  these  writs  were  returnable  always  in  term,  so 
the  appearance  of  the  parties,  the  pleading,  and  all  proceed- 
ings whatever  in  open  court,  took  place  in  term  time  only 
and  never  in  vacation. 

The  appearance  of  the  parties  might  be  either  in  person  or 
by  attorney;  but  actual  and  personal  appearance  in  open  court, 
either  by  the  attorney  or  his  principal,  was  requisite,  (g) 

Upon  such  appearance  followed  the  allegations  of  fact  mutu- 
ally made  on  either  side,  by  which  the  court  received  informa- 
tion of  the  nature  of  the  controversy.  These,  described  at  first 
by  the  rude  term  of  loquela,  have  been  in  more  modern  times 
denominated  the  pleading  QY  pleadings. 

As  the  appearance  was  an  actual  one,  so  the  pleading  was 
an  oral  altercation  in  open  court  in  presence  of  the  judges.  (A) 

(/)  1  Sellon,  69;  In  trod.  xliv.    See  Appendix,  note  (4). 
(g)  See  Appendix,  note  (5). 
(A)  See  Appendix,  note  (.6). 


§  89.]  PKOCEEDINGS   IN   AN   ACTION. 

This  method  of  pleading  viva  vow,  universally  in  use  among  the 
early  European  judicatures,  (*)  and  indeed  the  natural  practice 
of  all  countries  where  the  arts  of  civilization  have  made  little 
progress,  certainly  prevailed  in  the  English  courts  in  the  reign 
of  Henry  III.,  (&)  and  is  generally  supposed  to  have  been  re- 
tained there  to  a  much  later  era.  (I) 

These  oral  pleadings  were  delivered  either  by  the  party  him- 
self or  his  pleader  (called  narrator  and  advocatus);(m)  and  it 
seems  that  the  rule  was  then  already  established  that  none  but 
a  regular  advocate  (or,  according  to  the  more  modern  term, 
"barrister)  could  be  a  pleader  in  a  cause  not  his  own.  (ri) 

§  89.  Formation  of  issue. —  It  was  the  office  of  the  judges  to 
superintend  or  (according  to  the  allusion  of  a  learned  writer)  (<?) 
moderate  the  oral  contention  thus  conducted  before  them.  In 
doing  this,  the  general  aim  was  to  compel  the  pleaders  so  to 
manage  their  alternate  allegations  as  at  length  to  arrive  at 
some  specific  point  or  matter  affirmed  on  the  one  side  and  de- 
nied on  the  other.  "When  this  matter  was  attained,  if  it  proved 
to  be  a  point  of  law,  it  fell,  of  course,  to  the  decision  of  the 
judges  themselves  (to  whom  alone  the  adjudication  of  all  legal 
questions  belonged) ;  (p)  but,  if  a  point  of  fact,  the  parties 
then,  by  mutual  agreement,  referred  it  to  one  of  the  various 
methods  of  trial  then  practiced,  or  to  such  trial  as  the  court 
should  think  proper.  This  result  being  attained,  the  parties 
were  said  to  be  at  issue l  (ad  exitum  —  that  is,  at  the  end  of 

(i)  See  Appendix,  note  (7). 
(fc)  Vide  Bract.  372  b. 

(I)  The  practice  is  said  to  have  been  abandoned  about  the  middle  of  the  reign  of  Edw. 
HI.    Gilbert's  Origin  of  King's  Bench,  v.  3  Reeves,  95. 
(m)  Bract.  412  a,  372  b. 

00  See  Appendix,  note  (8). 

(o)  Mr.  Reeves,  vol.  ii,  334,  where  some  curious  specimens  from  the  Year  Books  are  given 
of  the  manner  of  the  viva  voce  pleading. 
(.p)  See  Appendix,  note  (9). 

1  The  formation  of  the  issue  is  the  controls  the  parties,  the  court  and 
end  and  object  of  all  pleading;  all  the  jury.    1   GreenL  Ev.,  §51;  Mar- 
the  subsequent  matters  of  the  book  shall  v.  Haney,  9  Gill,  251;  Leopard 
have  that  object  in  view.    An  issue  v.  Ches.  &  O.  Ry.  Co.,  1  Gill,  228,  Bas- 
is a  single  certain  material  point,  sett  v.  Johnson,  2  N.  J.  Eq.  154;  Eber- 
What  this  issue  is,  is  for  the  court  to  hart  v.  Sanger,   1  Wis.   72.    It   re- 
decide.    Avon  Mfg.  Co.  v.  Andrews,  quires  or  excuses  proof.     Simons  v. 
30  Conn.  476.    The  issue  is  framed  Winters,  5  Pet.  141.    No  testimony 
by  the  parties  in  their  pleadings,  and  can  be  heard  except  such  as  bears 


148  CAUSES   AND   FORMS   OF  ACTION.  [§  90. 

their  pleading);  the  question  so  set  apart  for  decision  was 
itself  called  the  issue;  and  was  designated,  according  to  its 
nature,  as  either  an  issue  in  fact  or  an  issue  in  law.  (g)  The 
whole  proceeding  then  closed,  in  case  of  an  issue  in  fact,  by 
an  award  or  order  of  the  court,  directing  the  institution,  at  a 
given  time,  of  the  mode  of  trial  fixed  upon ;  or,  in  case  of  an 
issue  of  law,  by  an  adjournment  of  the  parties  to  a  given  day, 
when  the  judges  should  be  prepared  to  pronounce  their  de- 
cision. 

§  90,  The  record  roll. —  During  this  oral  altercation  a  con- 
temporaneous official  minute  in  writing  was  drawn  up  by  one 
of  the  officers  of  the  court,  on  a  parchment  roll,  containing  a 
transcript  of  all  the  different  allegations  of  fact  to  the  issue 
inclusive.1  And,  in  addition  to  this,  it  comprised  a  short  notice 
of  the  nature  of  the  action,  the  time  of  the  appearance  of  the 
parties  in  court,  and  the  acts  of  the  court  itself  during  the  prog- 
ress of  the  pleading.  These  chiefly  consisted  of  what  were 
called  the  "  continuances  "  of  the  proceedings  —  the  nature  of 
which  was  as  follows:  There  were  certain  purposes  for  which 
the  law  allowed  the  proceedings  to  be  adjourned,  or  continued 
over  from  one  term  to  another,  or  from  one  day  to  another  in 
the  same  term;  and  when  this  happened,  an  entry  of  such  ad- 
journment to  a  given  day  and  of  its  cause  was  made  on  the 
parchment  roll;  and  by  that  entry  the  parties  were  also  ap- 
pointed to  reappear  at  the  given  day  in  court.  Such  adjourn- 

(3)  See  Appendix,  note  (10). 

upon    the    issue.    Borkenhagen   v.  ments   may  be  corrected,  but  are 

Paschen,  72  Wis.  272.    A  judgment  binding  until  reversed.  See  Vanfleet 

is  void  collaterally  if  not  within  the  on  Collateral  Attack,  §8  60.  693;  3 

issue,    though    based    upon    ample  Cooley's  Black.  (4th  ed.)  *315. 

proof.    Munday  v.  Vail,  34  N.  J.  L.  * "  It  was  the  old  practice  that  the 

418;  Reynolds  v.  Stockton,  140  U.  S.  proceedings  of  a  court  were  not  kept 

254    No  judgment  is  res  adjudieata  in  a  book  but  shown  by  'rolls,'  as 

which  is  beyond  the  issua  Id. ;  Jacob-  they  were  called  in  England;  'rec- 

Bon  v.  Miller,  41  Mich.  90;  Duchess  ords,'  in  New  York.    Tidd's  Pr.  728; 

of  Kingston's  Case,  2  Smith's  L.  C.  Graham's  Pr.  341.    And  the  prepara- 

535;  Gage  v.  Ewing,  107111.11.    A  tion  of  the  roll  was  the  duty  of  the 

final    judgment  is  res   adjudieata,  attorney    of   the   successful  party, 

though  palpably  against  the  law  or  Tidd,  730;  Douglass  v.  Vallop,  2  Bun. 

the  evidence,  which  is  within  the  722-23."  Scott  v.  Schnadt,  67  III  App. 

issue ;  it  is  the  allegation  which  gives  546. 
jurisdiction,    and    erroneous    judg- 


§  91.]  PBOCEEDINGS    IN   AN   ACTION.  149 

ment  was  called  a  continuance.  Thus  the  award  of  the  mode 
of  trial  on  an  issue  in  fact,  and  also  the  adjournment  of  the 
parties  to  a  certain  day  to  hear  the  decision  of  the  court  on  an 
issue  in  law,  were  each  of  them  continuances,  and  were  entered 
as  such  on  the  roll.  The  official  minute  of  the  pleading  and 
other  proceedings  thus  made  on  the  parchment  roll  was  called 
the  record.  As  the  suit  proceeded,  similar  entries  of  the  re- 
maining incidents  in  the  cause  were,  from  time  to  time,  contin- 
ually made  upon  it;  and  when  complete  it  was  preserved  as  a 
perpetual,  intrinsic  and  exclusively  admissible  testimony  of  all 
the  judicial  transactions  which  it  comprised.1  From  the  be- 
ginning of  the  reign  of  Kich.  I.  (r)  commences  a  still  extant 
series  of  records  down  to  the  present  day;  and  such,  as  far  back 
as  can  be  traced,  has  always  been  the  stable  and  authentic 
quality  of  these  documents  in  contemplation  of  law.  (*) 

§91.  Appearance  —  Modern  practice. —  To  return  to  the 
modern  practice.  The  appearance  of  the  parties  is  no  longer 
(as  formerly)  by  the  actual  presence  in  court  either  of  them- 
selves or  their  attorneys.  It  is  to  be  observed,  however,  that 
an  appearance  of  this  kind  is  still  supposed;  and  exists  in  fiction 
or  contemplation  of  law.  But,  in  fact,  appearance  is  effected 
on  the  part  of  the  defendant  (where  he  is  not  arrested)  by  mak- 
ing certain  formal  entries  in  the  proper  office  of  the  court, 
expressing  his  appearance,  (t)  or,  in  case  of  arrest,  it  may  be 
considered  as  effected  by  giving  bail  to  the  action.  On  the 
part  of  the  plaintiff,  no  formality  expressive  of  appearance  is 
observed,  but,  upon  appearance  of  the  defendant,  effected  in 
the  manner  above  described,  both  parties  are  considered  as  in 
court,  (u) 

The  appearance  of  either  party  may  in  general  purport  to 
be  either  in  his  own  person  or  that  of  his  attorney;  (a?)  but, 

(r)  1  Reeves,  218. 

(«)  See  Appendix,  note  (11). 

(*)  Impey,  C.  P.  216;  1  Tidd,  213,  214  (4th  ed.). 

(u)  Impey,  0.  P.  215. 

(a;)  See  Appendix,  note  (12). 

1  Every  judicial  act  must  in  some  have  been  done  orally  can  be  given 

way  appear  of  record;  that  is,  there  any  effect.    Culver  v.  Congle,  165 11L 

must  be  some  minute  or  memorial  417;  C.,  B.  &  Q.  E.  Co.  v.  Wingler, 

papers,  or  else  it  is  very  doubtful  165  III  634. 
whether,  after  the  term,  what  may 


150  CAUSES   AND   FORMS   OF   ACTION.  [§  92. 

when  lie  appears  by  attorney,  there  ought  regularly,  and  there 
is  always  supposed  to  be,  a  warrant  in  writing  executed  by 
him  for  that  purpose,  (y) l 

The  appearance,  in  common  with  all  subsequent  proceedings 
supposed  to  take  place  in  court,  should  (in  accordance  with 
the  state  of  the  ancient  practice)  purport  to  be  in  term  time. 
It  is  to  be  observed,  however,  that  though  the  proceedings  are 
expressed  as  if  occurring  in  the  term,  yet  much  business  is 
now,  in  fact,  done  during  the  periods  of  vacation. 

§  92.  Pleadings. —  On  appearance  of  the  parties  the  plead- 
ings commence.  (2) 2 

These  have  long  since  ceased  to  be  delivered  orally  or  in  open 
court.  The  present  practice  is  to  draw  them  up,  in  the  first 
instance,  on  paper,  and  the  attorneys  of  the  opposite  parties 
either  mutually  deliver  them  to  each  other  out  of  court,  or 
(according  to  the  course  of  practice  in  the  particular  case) 
file  them  in  the  office  of  the  proper  officer  of  the  court ;  from 
whence  a  copy  of  each  pleading  is  furnished  to  the  party  by 
whom  it  is  to  be  answered,  (a)  These  paper  pleadings,  at  a 
subsequent  period,  are  entered  on  record  (according  to  a  course 

(y)  1  Tidd,  69,  70.    [This  practice  is  not  observed.] 

(z)  See  Appendix,  note  (13). 

(a)  1  Sellon,  231,  294;  1  Arch.  Prac.  101, 121,  where  it  is  explained  In  what  cases  they  should 
be  filed,  and  in  what  delivered.  They  are  filed  in  the  common  pleas,  in  the  office  of  the 
prothonotaries  (Imp.  C.  P.  69,  297;  1  Sellon,  223).  In  the  king's  bench  the  declarations  are 
filed  with  the  clerk  of  the  declarations  (1  Tidd,  395, 4th  ed.),  and  the  other  pleadings  with  the 
clerk  of  the  papers  (1  Sellon,  295). 

1  Appearance  may  be  either  a  spe-  but  as  consent  cannot  confer  juris- 
cial  appearance  for  some  special  pur-  diction  of  the  subject-matter,  a  gen- 
pose  only,  as  to  object  to  jurisdiction,  eral  appearance  does  not  have  that 
or  to  take  advantage  of  some  privi-  effect.  Cooper  v.  Reynolds,  10  WalL 
lege.  If,  after  a  defendant  files  a  308;  Dennison  v.  Hyde,  6  Conn.  508; 
general  notice  of  appearance,  the  bill  Walter  v.  Beckman,  122  U.  S.  320; 
is  amended  so  that  a  demurrer  Van  Fleet,  Collateral  Attack,  §  384. 
thereto  for  want  of  jurisdiction  will  2"The  object  of  pleading,"  said 
no  longer  lie,  he  will  be  permitted  Mr.  Justice  Schofield,  "is  to  apprise 
to  amend  his  general  notice  to  make  the  opposite  party  of  the  charge 
it  special  only,  unless  the  complain-  against  him,  or  of  the  defense  inter- 
ant  will  stipulate  to  withdraw  his  posed,  so  that  due  preparation  for 
amended  bill,  and  proceed  on  the  trial  may  be  made,  and  not  to  furnish 
original.  Hohorst  v.  Hamburg-Amer-  a  sword  for  defeating  a  good  case  on 
ican  Packet  Co.,  38  Fed.  R.  273.  A  technical  and  fanciful  distinctions, 
voluntary  general  appearance  waives  which  in  no  manner  interfere  with 
the  necessity  for  process  and  waives  the  proper  decision  of  the  case  on  its 
objection  to  the  process  or  service;  merits.  The  most  that  can  be  said  is 


§  92.]  PROCEEDINGS   IN   AN   ACTION.  151 

of  practice  that  will  be  afterwards  stated)  by  transcribing  them 
on  a  parchment  roll  [the  record  roll1]. 

At  what  exact  period,  and  by  what  gradations,  these  alter- 
ations of  the  ancient  system  took  place,  has  not  been  accu- 
rately determined.  The  most  probable  opinion  seems  to  be 
that  the  mode  of  departure  from  the  old  practice  of  making 
verbal  statements  in  open  court,  and  entering  them  contempo- 
raneously on  record,  was  that  the  pleader  (through  an  allowed 
relaxation  of  that  proceeding)  began  to  discontinue  the  oral 
delivery,  and,  in  lieu  of  it,  entered  his  statement,  in  the  first 
instance,  upon  the  parchment  roll,  on  which  the  record  used 
to  be  drawn  up;  that  the  pleader  of  the  other  party  had  access 
to  this  roll,  in  order  to  concert  his  answer,  which  he  afterwards 
entered  in  the  same  manner,  and  that  the  roll  thus  formed 
both  the  primary  statement  and  the  record ;  that,  this  method 
being  attended  with  some  inconveniences,  the  expedient  was 
at  length  adopted  of  putting  the  pleadings  first  on  paper,  de- 
livering them  in  that  form  to  either  party,  or  filing  them  in 
the  proper  office  of  the  court,  and  deferring  the  entry  of  them 
on  record  till  a  subsequent  stage  of  the  cause.  (5)  It  is  supposed 
that  the  mode  of  entering,  in  the  first  instance,  on  the  roll,  con- 
tinued at  least  as  late  as  the  reign  of  Edward  IY.  (c)  "When 
it  began,  that  is,  when  the  oral  pleading  was  first  abandoned, 
is  a  point  of  some  uncertainty;  but  the  probability  seems  to  be 
that  it  took  place  in  the  middle  of  the  reign  of  Edward  III.  (d) 

If  the  method  of  written  pleading  was  introduced  in  the 
manner  here  described,  a  satisfactory  explanation  is  thus  af- 
forded of  a  circumstance  which  it  would  be  otherwise  diffi- 
cult to  account  for,  viz.,  that  the  paper  pleadings  thus  filed  or 
delivered  between  the  parties  pursue  the  style,  in  which  the  record 
itself  was  drawn  up.  Like  it,  they  are  expressed  in  the  third 
person,  "  A.  B.  complains,"  "  C.  D.  comes  and  defends,"  etc., 
and  state  the  form  of  action,  the  appearance  of  the  parties, 

(6)  3  Reeves,  427. 

(c)Id. 

(d)  Id.  95. 

that  we  have  here  a  defective  state-  tion  we  pass  to  the  consideration  of 

ment  of  a  good  cause  of  action.    But  a  more  serious  question."    See  Swift 

the  objection  to  the  declaration  can  &  Co.  v.  Raleigh,  54  111.  App.  44. 

be  removed  by  amendment  before  *  Ante,  p.  148. 
another  trial,  and  with  this  sugges- 


152  CAUSES  AND  FORMS   OF  ACTION.  [§§  93,  94. 

and  sometimes  the  continuances  and  other  acts  and  proceed- 
ings in  court.  (<?)  They  are  framed,  in  short,  as  if  they  were 
extracts  from  the  record^  though  the  record  is,  by  the  present 
practice,  not  drawn  up  till  a  subsequent  period,  and  is  then  a 
transcript  from  them.  Important  effects  belong  to  this  pecul- 
iarity of  style.  Being  conceived  as  copies  from  the  record, 
the  pleadings  consequently  imply  previous  statements  by  legal 
fiction  supposed  to  be  still  verbally  made  in  open  court,  and 
contemporaneously  recorded,  according  to  the  ancient  practice. 
The  effect  of  this  is,  that  they  are  framed  upon  the  same  prin- 
ciples as  those  which  belonged  to  the  method  of  oral  allega- 
tion. The  parties  are  made  to  come  to  issue  exactly  in  the 
same  manner  as  when  really  opposed  to  each  other  in  verbal 
altercation  at  the  bar  of  the  court;  and  all  the  rules  which  the 
judges  of  former  times  prescribed  to  the  actual  disputants  be- 
fore them  are,  as  far  as  possible,  still  enforced  with  respect  to 
these  paper  pleadings.  (/") 

§  93.  Signing  of  pleading. —  As  the  oral  pleading  could 
formerly  be  delivered  by  none  but  regular  advocates,  so,  at  the 
present  day,  it  is  necessary  that  each  paper  pleading  should  be 
signed  by  a  barrister  (some  few  of  the  most  ordinary  and  simple 
kind,  and  all  declarations,  excepted) ;  and  in  the  common  pleas, 
no  barrister  can  sign  a  pleading  but  one  who  has  attained  the 
degree  of  sergeant ;  but  in  the  other  courts  there  is  no  such  re- 
striction. On  this  head  it  may  be  farther  observed  that  the 
pleadings,  though  thus  signed,  and  sometimes  in  fact  drawn 
by  barristers,  are  also  often  drawn  by  the  attorneys,  or  by  per- 
sons of  learning,  who  have  not  been  admitted  to  the  degree 
of  barrister,  but  are  employed  by  the  attorneys  in  that  depart- 
ment of  practice  exclusively, —  and  are  known  by  the  name  of 
special  pleaders.1 

After  these  preliminary  explanations  as  to  the  general  prac- 
tical form  of  the  modern  pleadings,  it  is  time  to  consider  their 
individual  construction. 

§  94.  The  declaration  or  count. —  The  pleading  begins 
with  the  declaration  or  count,  which  is  a  statement,  on  the 

Ce)  As  to  the  form  in  which  the  record  was  drawn  up,  vide  supra,  p.  148. 
(/)  See  Appendix,  note  (14). 

1  See  Appendix,  note  88. 


§  94.]  PROCEEDINGS    IN   AN    ACTION.  153 

part  of  the  plaintiff,  of  his  cause  of  action,  (g)  In  a  real  ac- 
tion it  is  most  properly  called  count;  in  a  personal  one,  the  dec- 
laration, (h]  The  latter,  however,  is  now  the  general  term; 
being  that  commonly  used  when  referring  to  real  and  per- 
sonal actions  without  distinction.  In  the  declaration  the 
plaintiff  states  the  nature  and  quality  of  his  case, —  in  gen- 
eral more  fully  than  in  the  writ,  but  still  in  strict  conformity 
with  the  tenor  of  that  instrument;  any  substantial  variance 
between  them  being  a  ground  of  objection.1  It  will  be  con- 
venient here  to  exhibit  examples  of  the  declaration,  in  the 
form  which  it  wears  in  those  more  frequent  actions,  of  which 
the  original  writs  have  already  been  laid  before  the  reader. 

[Structure  of  a,  declaration,  or  complaint. —  A  brief  exhibi- 
tion of  the  anatomy  of  the  complaining  parties'  original  state- 
ment will  be  useful  in  examining  the  examples  hereafter  given. 

A  declaration  or  count  in  a  legal  action  contains  either  six 
or  seven  parts,  according  to  the  nature  of  the  suit. 

The  caption,  designating  the  court. 

The  title  of  the  case,  stating  (a)  who  is  suing,  (b)  who  is  sued, 
and  the  nature  of  the  suit,  which  was  formerly  a  statement  of 
the  form  of  action. 

The  inducement  (used  in  trespass  on  the  case). —  A  recital 
showing  the  relation  between  the  parties  on  which  the  duty 
violated  is  claimed  to  rest.2  It  may  be  a  contract,  or  in  negli- 
gence cases  the  relative  situations,  and  an  allegation  of  such 
duty  as  a  legal  fact.3 

The  charge,  a  positive  allegation  of  the  facts  constituting  the 
injury,  which  may  be  a  breach  of  contract,  covenant,  etc.,  or 

(g)  See  Appendix,  note  (15). 

(A)  Reg.  Plac.  2,  cites  F.  N.  B.  16,  a,  60,  <L 

1 A  declaration  is  sufficient  in  law  leged.    Quincy  Coal  Co.  v.  Hood,  76 

if   it   properly  avers    facts  which,  111.  68. 

with  the  legal  presumptions  arising  2  In  direct  forcible  injuries,  where 

thereon,  make  a  prima  facie  case,  the  acts   charged  in  the  charging 

People  for  use,  etc.  v.  Lane,  36  111.  clause  are  prima  facie  unlawful,  no 

App.  649;  Cook  v.  Scott,  1  Gilm.  333.  inducement  is  required.   Theinduce- 

It  is  an  elementary  rule  of  pleading  ment  serves  to  show  why  the  acts 

that  every  fact  essential  to  a  cause  are  an  injury  to  the  plaintiff.    See 

of  action  is  issuable,  and  must  be  People  v.  Ryder,  12  N.  Y.  433. 

proved  upon  trial,  unless  admitted  3  Donovan    v.    Hartford    &    New 

by  the  defendant,  substantially  as  al-  Haven  Ry.  Co.,  stated  ante,  §  107. 


154:  CAUSES   AND   FOKMS   OF   ACTION.  [§  94. 

negligence,  malice,  or  the  like,  or  a  forcible  trespass  to  person 
or  property.1 

The  injury  and  ad  damnum  clause  is  added  after  the  allega- 
tion of  the  charge,  breach  of  contractual  obligation,  trespass, 
negligence  or  malicious  injuries,  by  alleging  "  whereby  the 
plaintiff  is  injured,  and  has  sustained  damages  in  the  sum  of," 
etc.  If  there  are  special  damages,  e,  g.,  expenses  incurred,  loss 
of  profits,  special  consequences  of  a  libel,  loss  of  employment, 
etc.,  they  must  be  specially  alleged.2 

Production  of  suit. —  A  formal  allegation  met  with  in  most 
modern  declarations,  used  formerly  to  express  an  essential 
requisite,  namely,  "  and  therefore  he  brings  his  suit,"  which  is 
explained  hereafter,3  and  is  at  the  present  time  entirely  unnec- 
essary. 

Signature  of  declaration  by  counsel,  or  by  the  party  (pro  se) 
if  he  has  no  counsel,  is  required. 

Modern  requirements  as  to  the  manner  of  alleging  facts. —  Ex- 
cept in  particular  cases  there  is  no  rule  of  law  that  any  other 
words  should  be  used  than  such  as  are  in  ordinary  use,  or  that 
any  other  sense  is  to  be  ascribed  to  words  in  pleading  than  the 
same  words  bear  in  ordinary  use.4  In  modern  practice  the  rep- 
etitions and  useless  words  of  the  old  declaration  are  no  longer 
necessary.  The  declaration  in  all  jurisdictions  should  embrace 

1  In  some  cases  special  damages  in  the  declaration,  and  these  being 
will  support  an  action  which  other-  often  ambiguous,  the  plaintiff  is  al- 
wise  would  not  lie;  e.  g.,  slander,  lowed  after  each  word  to  throw  in 
where  the  words  are  not  actionable  his  construction  of  the  meaning  in- 
per  se,  and  case,  for  a  nuisance  pub-  tended  by  the  defendant.    Lewis  v. 
lie  in  its  nature,  where  a  private  Chapman,  16  N.  Y.  371. 

party  can  sue  only  because  of  a  spe-  3  Appendix,  note  89. 

cial  injury.  *  Fifteen    years    after   the   decis- 

2  Declarations  in  libel  and  slander  ion  of  Judge  Marvin  cited  in  the 
present  an  anomaly  in  pleading  in  text,  Charles  O'Conor  said:  "I think 
the  use  of  a  phrase  in  the  induce-  the  code    contains,  as  I  best  recol- 
ment  called  a   colloquium,  and  in  lect  at  this  moment,  only  one  thing 
the  charge  of  an  explanatory  phrase  which  can  be  called  new  in  princi- 
called  the  innuendo.     The  former  pie,  and  this  is  an    attempt  at  an 
consists  in  alleging  that  the  mali-  absolute    impossibility  in    prescrib- 
cious  discourse  (speech)  or  publica-  ing  the  rule  of  pleading.    It  declares 
tion  (writing)  was  of  and  concerning  in  substance   and   effect  that  you 
the  plaintiff.    The    latter    is   occa-  shall  not  plead  as  in  the  old  system 
sioned  by  the   rule   requiring   the  the  conclusions  in  law,  or  in  reason 
words  to  be  substantially  repeated  from  the  facts  of  the  case,  and  at 


§910 


PKOCEEDINGS    IN   AN   ACTION. 


155 


a  concise,  clear,  methodical  statement  of  the  plaintiff's  cause 
and  grounds  of  action ;  that  is,  the  statement  of  the  legal  right 
and  the  facts  constituting  the  injury.  As  we  pointed  out  in 
section  16,  if  the  plaintiff's  statement  does  this,  the  narration, 
no  matter  what  its  name  or  where  it  is  filed,  is  good.  It  is 
in  regard  to  how  these  facts  are  to  be  stated  that  the  chief 
reform,  so  far  as  the  strict  matter  of  pleading  is  concerned 
(i.  <?.,  allegation),  is  said  to  be  found,  and  it  is  said  that  this 
change  consists  in  a  departure  from  the  common-law  rule  which 
required  that  a  party  should  plead  the  facts  according  to  the 
legal  effect  and  not  the  evidence  of  them.1  And  the  new  rule 
is  said  to  be  that  the  allegation  shall  be  of  "  the  material  facts 
as  they  actually  existed  or  took  place,  and  not  the  legal  effect 


the  same  time  it  prohibits  you  from 
stating  or  detailing  the  evidence 
merely  on  which  you  rely." 

The  law  as  it  now  stands  in  the 
code  states  is  not  only  a  complete  ac- 
quiescence in  the  doctrine  of  Judge 
Marvin,  that  the  allegations   in   a 
special  count  at  common  law  com- 
ply with  the  code,  but  the  courts  of 
the  code  states  have  with  practical 
unanimity   held  that  the  ordinary 
common  count  which  we  have  de- 
scribed, i.  e.,  general  assumpsit,  com- 
plies with  the  code  rule  in  regard 
to  the  pleading  of  facts.     Allen  v. 
Patterson,  3  Seld.  543,  57  Am.  Dec. 
546,  and  note;  Pomeroy's  Code  Rem., 
§  54;  Terry  v.  Hunger,  121  N.  Y.  161. 
Not  only  this,  they  have  so  far  re- 
turned to  the  common-law  doctrine 
as  to  allow  a  plaintiff  to  recover  upon 
the  common  count  in  the  case  of  a 
fully  performed    express    contract, 
precisely  as  we  pointed  out  under  the 
action  of  assumpsit,  without  requir- 
ing him  to  ground  his  action  upon 
the    express    contract.     Pomeroy's 
Code  Rem.,  §  543.    They  have  in  such 
cases  held  further  that  it  is  not  nec- 
essary to  set  out  in  terms  a  promise, 
but  that  it  is  sufficient  to  state  facts 
showing  the  duty  from  which  the  law 


implies  the  promise.  Pomeroy's  Code 
Rem.,  §§  535-40.  This  would  be  good 
pleading  in  the  common-law  states. 
Avery  v.  Tyringham,  3  Mass.  160,  3 
Am.  Dec.  105. 

The  New  York  court  very  early 
held  that  the  rule  of  pleading  in 
an  action  for  a  legal  remedy  is  the 
same  as  formerly  in  this:  that  facts 
and  not  evidence  of  facts  are  to  be 
pleaded.  Allen  v.  Patterson,  supra, 
citing  1  Chitty,  PL  215;  Eno  v.  Wood- 
worth,  4  Comst.  349;  Emery  v. 
Fell.  2  Term,  28.  In  some  of  the 
early  cases  it  was  doubted  whether 
it  was  proper  in  a  declaration  to 
allege  a  promise  in  case  of  implied 
contracts,  or  whether  it  was  not  nec- 
essary in  such  cases  to  set  out  all  of 
the  facts  from  which  the  law  implied 
the  promise.  Euo  v.  Wood  worth,  4 
Comst.  249  (1850);  Cropsey  v.  Sweeney, 
27  Barb.  312  (1858).  But  it  is  now 
firmly  established  that  the  ordinary 
common  counts  are  a  sufficient  state- 
ment of  the  facts.  Notwithstanding 
that  the  promise  is  fictitious,  the  al- 
legation may  be  false  and  an  express 
contract  may  exist. 

1  Rule  VI,  post.    See  also  Chitty's 
PI.  (14th  Am.  ed.),  *232. 


156 


CAUSES   AND   FOKMS   OF   ACTION. 


[§94. 


or  aspect  of  those  facts,  and  not  the  mere  evidence  or  proba- 
tive matter  by  which  their  existence  is  established."  l 

The  distinction  then  must  be  made  between  stating  the  legal 
effect  of  such  facts  as  constitute  the  plaintiff's  right  and  consti- 
tute the  wrong  or  injury,  and  the  evidential  probative  facts  and 
circumstances,  and  which  will  at  the  same  time  be  concise  and 
plain.  Professor  Pomeroy  quotes  approvingly  the  language  of 
Judge  Marvin  in  People  v.  Kyder,2  "  I  have  supposed  it  safe  and 
a  compliance  with  the  code  to  state  the  facts  constituting  the 
cause  of  action  substantially  in  the  same  manner  in  which  they 
were  stated  in  the  old  system  in  a  special  count.  By  that  sys- 
tem the  legal  issuable  facts  were  to  be  stated,  and  the  evi- 
dence by  which  those  facts  were  to  be  established  was  to  be 
brought  forward  upon  the  trial.  This  position  will  not  em- 
brace what  were  known  as  the  common  counts" 3 

The  common  counts,  under  the  common-law  system,  are 
always  fictitious  and  never  based  upon  an  actual  contract,  and 
this  must  remain  so  long  as  actions  are  allowed  on  implied  con- 


i  Pomeroy,  Code  PI.,  §  517;  1  Bliss 
Code  PI.,  §  151.  The  fictitious  com- 
mon count  was  the  object  aimed  at 
by  the  codifier.  1st  Report  Code 
Commissioners,  p.  70  [1855], 

*  12  N.  Y.  433-487. 

3  Professor  Pomeroy  says  in  com- 
ment: "  No  more  accurate  exposition 
of  the  fundamental  doctrine  an- 
nounced by  the  codes  is  to  be  found 
in  the  books  than  the  foregoing  opin- 
ion of  Mr.  Justice  Marvin."  Pom- 
eroy's  Code  Eem.  (3d  ed.),  §  517,  note. 

In  the  same  note  the  learned  au- 
thor cites  several  other  decisions,  one 
of  which  adds  that  in  addition  to 
the  common-law  rule,  which  was  to 
state  facts  according  to  their  legal 
effect  instead  of  stating  them  as  they 
actually  occurred,  states  the  change 
to  be,  that  -the  code  only  requires 
that  facts  shall  be  stated  in  ordinary 
language.  Hill  v.  Barrett,  14  B.  Mon. 
83.  None  of  these  opinions  suggests 
any  criterion  excepting  that  of  dis- 
carding the  common  counts.  In  one, 
which  was  merely  in  effect  holding 
that  when  the  action  was  based  on 


an  implied  contract  the  party  had  a 
right  to  allege  the  facts  from  which 
the  contract  would  be  implied  with- 
out resorting  to  the  common  counts, 
in  the  same  manner  as  one  would 
frame  a  special  count  in  assumpsit, 
excepting  that  the  pleader  did  not  use 
the  words  "promised  "  or  "agreed," 
or  that  he  was  indebted.  As  the 
count  stood,  it  was  clearly  a  good 
count  in  trespass  on  the  case  under 
the  ancient  forms.  But  the  learned 
judge  added  that  it  was  better  in 
such  cases  to  allege  a  promise,  say- 
ing: "It  is  always  good  pleading  to 
state  the  legal  effect  of  the  contract 
whether  it  be  written  or  oral." 

Thus  far  there  has  been  offered  but 
one  criterion  for  determining  what 
shall  be  considered  pleading  the  facts 
in  a  case  as  distinguished  from  plead- 
ing the  legal  conclusions,  viz.,  dis- 
carding the  common  counts  and 
framing  a  declaration  which,  accord- 
ing to  common-law  pleading,  was  a 
special  count,  is  in  conformity  with 
the  coda  See  Cook  v.  Warren,  88 
N.  Y.  37. 


§  94.]  PROCEEDINGS   IN  AN  ACTION.  157 

tracts.  But  this  by  no  means  warrants  the  conclusion  that 
any  recital  of  fact  in  any  language  will  do,  or  that  a  change 
has  been  made  in  the  common-law  pleading  in  special  assump- 
sit  or  in  any  other  forms  of  action.] 

COUNT   IN   DOWEE.1 

'  In  the  Common  Pleas. 

Term,  in  the year  of  the  reign 

of  King  George  the  Fourth. 

to  wit,  A.  B.,  widow,  who  was  the  wife  of  E.  B.,  de- 
ceased, by ,  her  attorney,  demands  against  C.  D.  the 

third  part  of  ten  messuages,  ten  barns,  ten  stables,  four  gar- 
dens, four  orchards,  two  thousand  acres  of  meadow,  two  thou- 
sand acres  of  pasture,  and  two  thousand  acres  of  other  land, 

with  the  appurtenances,  in  the  parish  of  ,  in  the  county 

of ,  as  the  dower  of  the  said  A.  B.  of  the  endowment  of 

E.  B.,  deceased,  heretofore  her  husband,  whereof  she  hath  noth- 
ing, etc.  (o) 

DECLAEATION  IN   QUAKE    IMPEDIT.  (p)      [Omitted.]  2 
DECLARATION   IN  DEBT,  (s) 

On  a  bond. 
In  the  King's  Bench. 

Term,  in  the year  of  the  reign 

of  King  George  the  Fourth. 

* to  wit,  C.  D.  was  summoned  to  answer  A.  B.  of  a  plea 

that  he  render  to  the  said  A.  B.  the  sum  of pounds,  of 

good  and  lawful  money  of  Great  Britain,  which  he  owes  to 
and  unjustly  detains  from  him.*3  And  thereupon  the  said 

A.  B.,  by ,  his  attorney,  complains :  For  that  whereas 

the  said  C.  D.  heretofore,  to  wit,  on  the day  of  , 

in  the  year  of  our  Lord ,  at ,  in  the  county  of , 

by  his  certain  writing  obligatory,  sealed  with  his  seal,  and 
now  shown  to  the  court  here  (the  date  whereof  is  the  day  and 
year  aforesaid),  acknowledged  himself  to  be  held  and  firmly 

bound  to  the  said  A.  B.  in  the  sum  of pounds  above 

demanded  to  be  paid  to  the  said  A.  B. ;  yet  the  said  C.  D 
(although  often  requested)  hath  not  as  yet  paid  the  said  sum 
of pounds  above  demanded,  or  any  part  thereof,  to  the 

(o)  3  Chitty,  597;  Booth,  166;  Rast.  Ent.  234,  b. 
(p)  See  the  Original  Writ.    [Omitted.] 
(r)  3  Chitty,  586;  1  Arch.  438;  10  Went.  67. 
(s)  See  the  Original  Writ.    [Omitted.] 

1  The  brevity  of  this  count  is  re-  2  Declaration  omitted  because  ob- 

markable;  it  will  be  hard  to  find  a  solete. 

modern  declaration  embraced  in  less  3  The  words  between  the  asterisks 

than  twelve  lines.  are  used  in  order  to  conform  to  the 

11  writ. 


158  CAUSES    AND   FORMS    OF   ACTION.  [§  94. 

said  A.  B.  But  so  to  do  hath  hitherto  wholly  refused,  and 
still  refuses,  to  the  damage  of  the  said  A.  B.  of  -  pounds; 
and  therefore  he  brings  his  suit,  etc. 

DECLARATION  IN  DEBT,  (t) 

On  simple  contract. 
In  the  King's  Bench. 

-  Term,  in  the  -  year  of  the  reign 

of  King  George  the  Fourth. 

-  to  wit,  C.  D.  was  summoned  to  answer  A.  B.  of  a  plea 
that  he  render  to  the  said  A.  B.  the  sum.  of  -  pounds,  of 
good  and  lawful  money  of  Great  Britain,  which  he  owes  to 
and  unjustly  detains  from  him.  And  thereupon  the  said  A.  B., 
by  --  ,  his  attorney,  complains:  For  that  whereas  the 
said  C.  D.  heretofore,  to  wit,  on  the  -  day  of  -  ,  in  the 
year  of  our  Lord  -  ,  at  -  ,  in  the  county  of  -  ,  was  in- 
debted to  the  said  A.  B.  in  the  sum  of  -  pounds,  of  lawful 
money  of  Great  Britain,  for  divers  goods,  wares  and  merchan- 
dise by  the  said  A.  B.  before  that  time  sold  and  delivered  to 
the  said  C.  D.  at  his  special  instance  and  request,  to  be  paid 
by  the  said  C.  D.  to  the  said  A.  B.  when  he,  the  said  C.  D., 
should  be  thereto  afterwards  requested.  Whereby,  and  by 
reason  of  the  said  last-mentioned  sum  of  money  being  and 
remaining  wholly  unpaid,  an  action  hath  accrued  to  the  said 
A.  B.  to  demand  and  have  of  and  from  the  said  C.  D.  the 
said  sum  of  -  pounds  above  demanded;  yet  the  said  C.  D. 
(although  often  requested)  hath  not  as  yet  paid  the  said  sum 
of  -  pounds  above  demanded,  or  any  part  thereof,  to  the 
said  A.  B.  But  so  to  do  hath  hitherto  wholly  refused,  and 
still  refuses,  to  the  damage  of  the  said  A.  B.  of  -  pounds; 
and  therefore  he  brings  his  suit,  etc. 

DECLARATION   IN   COVENANT,  (u) 

On  an  indenture  of  lease  —  for  not  repairing. 
In  the  King's  Bench. 


Term,  in  the  -  year  of  the  reign 
of  King  George  the  fourth. 

-  to  wit,  C.  D.  was  summoned  to  answer  A.  B.  of  a  plea 
that  he  keep  with  him  the  covenant  made  by  the  said  C.  D. 
with  the  said  A.  B.,  according  to  the  force,  form  and  effect  of 
a  certain  indenture  in  that  behalf  made  between  them.  And 
thereupon  the  said  A.  B.,  by  --  ,  his  attorney,  complains  : 
For  that  whereas  heretofore,  to  wit,  on  the  -  day  of  -  , 

(t)  See  the  Original  Writ,  supra.  That  writ,  it  will  be  observed,  is  so  general  as  to  apply 
to  all  causes  of  action  sufficient  to  constitute  a  debt  in  point  of  law.  There  is,  accordingly, 
but  one  form  of  original  writ  in  debt,  though  the  form  of  the  declaration  will  vary  accord- 
big  to  the  nature  of  the  cause  of  action,  as  in  this  and  the  preceding  example. 

GO  See  the  Original  Writ.   Omitted.] 


§  94.]  PROCEEDINGS    IN   AN    ACTION.  159 

in  the  year  of  our  Lord ,  at ,  in  the  county  of  , 

by  a  certain  indenture  then  and  there  made  between  the  said 
A.  B.  of  the  one  part,  and  the  said  C.  D.  of  the  other  part 
(one  part  of  which  said  indenture,  sealed  with  the  seal  of  the 
said  C.  D.,  the  said  A.  B.  now  brings  here  into  court,  the  date 
whereof  is  the  day  and  year  aforesaid),  the  said  A.  B.,  for  the 
consideration  therein  mentioned,  did  demise,  lease,  set,  and  to 
farm  let  unto  the  said  G.  D.  a  certain  messuage  or  tenement, 
and  other  premises,  in  the  said  indenture  particularly  specified, 
to  hold  the  same,  with  the  appurtenances,  to  the  said  C.  D., 
his  executors,  administrators  and  assigns,  from  the  twenty- 
fifth  day  of  March  next  ensuing  the  date  of  the  said  indenture, 
for  and  during,  and  unto  the  full  end  and  term  of  seven  years 
from  thence  next  ensuing,  and  fully  to  be  complete  and  ended, 
at  a  certain  rent  payable  by  the  said  C.  D.  to  the  said  A.  B.,as 
in  the  said  indenture  is  mentioned.  And  the  said  C.  D.,  for 
himself,  his  executors,  administrators  and  assigns,  did  thereby 
covenant,  promise  and  agree,  to  and  with  the  said  A.  B., 
his  heirs  and  assigns  (amongst  other  things),  that  he,  the  said 
C.  D.,  his  executors,  administrators  and  assigns,  should  and 
would,  at  all  times  during  the  continuance  of  the  said  demise, 
at  his  and  their  own  costs  and  charges,  support,  uphold,  main- 
tain and  keep  the  said  messuage  or  tenement  and  premises  in 
good  and  tenantable  repair,  order  and  condition;  and  the 
same  messuage  or  tenement  and  premises,  and  every  part 
thereof,  should  and  would  leave  in  such  good  repair,  order 
and  condition  at  the  end  or  other  sooner  determination  of 
the  said  term;  as  by  the  said  indenture,  reference  being 
thereunto  had,  will,  among  other  things,  fully  appear.  By 
virtue  of  which  said  indenture,  the  said  C.  D.  afterwards,  to 
wit,  on  the  twenty-fifth  day  of  March,  in  the  year  aforesaid, 
entered  into  the  said  premises,  with  the  appurtenances,  and 
became  and  was  possessed  thereof,  and  so  continued  until  the 
end  of  the  said  term.  And  although  the  said  A.  B.  hath  al- 
ways, from  the  time  of  the  making  of  the  said  indenture, 
hitherto,  done,  performed  and  fulfilled  all  things  in  the  said 
indenture  contained  on  his  part  to  be  performed  and  fulfilled, 
yet  protesting  that  the  said  C.  D.  hath  not  performed  and 
fulfilled  anything  in  the  said  indenture  contained  on  his  part 
and  behalf  to  be  performed  and  fulfilled,  in  fact,  the  said 
A.  B.  saith  that  the  said  C.  D.  did  not,  during  the  continu- 
ance of  the  said  demise,  support,  uphold,  maintain  and  keep 
the  said  messuage  or  tenement  and  premises  in  good  and 
tenantable  repair,  order  and  condition,  and  leave  the  same  in 
such  repair,  order  and  condition  at  the  end  of  the  said  term ; 
but  for  a  long  time,  to  wit,  for  the  last  three  years  of  the  said 
term,  did  permit  all  the  windows  of  the  said  messuage  or 
tenement  to  be,  and  the  same  during  all  that  time  were,  in 
every  part  thereof  ruinous,  in  decay  and  out  of  repair,  for 


160  CAUSES   AND   FORMS   OF   ACTION".  [§  94. 

want  of  necessary  reparation  and  amendment.  And  the  said 
G.  D.  left  the  same,  being  so  ruinous,  in  decay  and  out  of  re- 
pair as  aforesaid,  at  the  end  of  the  said  term,  contrary  to  the 
form,  and  effect  of  the  said  covenant  so  made  as  aforesaid. 
And  so  the  said  A.  B.  saith  that  the  said  C.  D.  (although 
often  requested)  hath  not  kept  the  said  covenant  so  by  him 
made  as  aforesaid,  but  hath  broken  the  same;  and  to  keep 
the  same  with  the  said  A.  B.  hath  hitherto  wholly  refused,  and 

still  refuses,  to  the  damage  of  the  said  A.  B.  of pounds, 

and  therefore  he  brings  his  suit,  etc.1 

DECLARATION   IN   DETINUE,  (x) 

In  the  King's  Bench. 

Term,  in  the year  of  the  reign 

of  King  George  the  Fourth. 

to  wit,  C.  D.  was  summoned  to  answer  A.  B.  of  a  plea 

that  he  render  to  the  said  A.  B.  certain  goods  and  chattels  of 

the  value  of pounds,  of  lawful  money  of  Great  Britain, 

which  he  unjustly  detains  from  him.    And  thereupon  the  said 

A.  B.,  by ,  his  attorney,  complains :  For  that  whereas 

the  said  A.  B.  heretofore,  to  wit,  on  the day  of  our  Lord 

,  at ,  in  the  county  of ,  delivered  to  the  said  C.  D. 

certain  goods  and  chattels,  to  wit,  forty  bushels  of  wheat  of  the 

said  A.  B.,  of  great  value,  to  wit,  the  value  of pounds, 

of  lawful  money  of  Great  Britain,  to  be  redelivered  by  the 
said  C.  D.  to  the  said  A.  B.  when  he,  the  said  C.  D.,  should  be 
thereto  afterwards  requested.  Yet  the  said  C.  D.,  although 

he  was  afterwards,  to  wit,  on  the day  of ,  in  the  year 

aforesaid,  at aforesaid,  in  the  county  aforesaid,  requested 

by  the  said  A.  B.  so  to  do,  hath  not  as  yet  delivered  the  said 

foods  and  chattels,  or  any  part  thereof,  to  the  said  A.  B. ; 
ut  so  to  do  hath  hitherto  wholly  refused,  and  still  refuses, 
and  still  unjustly  detains  the  same  from  the  said  A.  B.,  to  wit, 

at aforesaid,  in  the  county  aforesaid,  to  the  damage  of 

the  said  A.  B.  of pounds ;  and  therefore  he  brings  his 

suit,  etc.  (y) 

DECLARATION   IN  TRESPASS,  (z) 
For  an  assault  and  battery. 

In  the  King's  Bench. 

Term,  in  the year  of  the  reign 

of  King  George  the  Fourth. 

to  wit,  0.  D.  was  attached  to  answer  A.  B.  of  a  plea 

wherefore  he,  the  said  0.  D.,  with  force  and  arms,  at ,  in 

(*)  See  the  Original  Writ.   [Omitted.] 

(y)  2  Chitty,  235. 

(z)  See  the  Original  Writ.    [Omitted.] 

1  This  is  a  long  form,  but  the  declaration  must  be  controlled  by  the  con- 
tract involved  in  the  suit. 


§  9i.]  PROCEEDINGS   IN   AN  ACTION.  161 

the  county  of ,  made  an  assault  upon  the  said  A.  B.,  and 

beat,  wounded  and  ill-treated  him,  so  that  his  life  was  despaired 
of,  and  other  wrongs  to  him  there  did,  to  the  damage  of  the 
said  A.  B.,  and  against  the  peace  of  our  lord  the  now  king. 
And  thereupon  the  said  A.  B.,  by ,  his  attorney,  com- 
plains: For  that  the  said  C.  D.  heretofore,  to  wit,  on  the 

day  of ,  in  the  year  of  our  Lord ,  with  force  and  arms, 

at aforesaid,  in  the  county  aforesaid,  made  an  assault 

upon  the  said  A.  B.,  and  then  and  there  beat,  wounded  and 
ill-treated  him,  so  that  his  life  was  despaired  of;  and  other 
wrongs  to  the  said  A.  B.  then  and  there  did ;  against  the 
peace  of  our  said  lord  the  king,  and  to  the  damage  of  the 
said  A.  B.  of pounds ;  and  therefore  he  brings  his  suit,  etc. 

DECLARATION   IN   TRESPASS,  (a) 

Quare  clausum  fregit. 
In  the  King's  Bench. 

Term,  in  the year  of  the  reign 

of  King  George  the  Fourth. 

to  wit,  C.  D.  was  attached  to  answer  A.  B.  of  a  plea 

wherefore  he,  the  said  C.  D.,  with  force  and  arms,  broke  and 
entered  the  close  of  the  said  A.  B.,  situate  and  being  in  the 

parish  of  ,  in  the  county  of ,  and  with  his  feet,  in 

walking,  trod  down,  trampled  upon,  consumed  and  spoiled 
the  grass  and  herbage  of  the  said  A.  B.  there  growing,  and 
being  of  great  value;  and  other  wrongs  to  the  said  A.  B. 
there  did,  to  the  damage  of  the  said  A.  B.,  and  against  the 
peace  of  our  lord  the  now  king.  And  thereupon  the  said 

A.  B.,  by ,  his  attorney,  complains:    For  that  the 

said  C.  D.  heretofore,  to  wit,  on  the  day  of ,  in  the 

year  of  our  Lord ,  with  force  and  arms,  broke  and  en- 
tered the  close  of  the  said  A.  B. ;  that  is  to  say,  a  certain  close 

called ,  situate  and  being  in  the  parish  aforesaid,  in  the 

county  aforesaid,  and  with  his  feet,  in  walking,  trod  down, 
trampled  upon,  consumed  and  spoiled  the  grass  and  herbage 
of  the  said  A.  B.  then  and  there  growing,  and  being  of  great 

value,  to  wit,  of  the  value  of pounds,  of  lawful  money  of 

Great  Britain;  and  other  wrongs  to  the  said  A.  B.  then  and 
there  did ;  against  the  peace  of  our  said  lord  the  king,  and  to 

the  damage  of  the  said  A.  B.  of pounds;  and  therefore 

he  brings  his  suit,  etc. 

In  a  former  place  (5)  some  mention  was  made  of  the  action 
of  ejectment;  and  it  was  stated  to  be  a  species  of  the  action 
of  trespass.  From  the  great  importance  and  frequency  of 
this  form  of  suit,  which  (as  before  observed)  has  nearly  sup- 

(a)  See  the  Original  Writ.   [Omitted.] 
(6)  Supra. 


162  CAUSES   AND   FORMS   OF   ACTION.  [§  9tL 

planted,  in  practice,  the  whole  system  of  real  and  mixed  ac- 
tions, and  is  the  almost  universal  remedy  for  the  recovery  of 
land,  it  will  be  proper  now  to  present  the  reader  with  an  ex- 
ample of  the  declaration  in  ejectment.  The  original  writ, 
if  drawn  out,  would  of  course  vary  in  some  degree,  in  form, 
from  those  in  the  two  preceding  species  of  trespass.  In  eject- 
ment, however,  though  the  proceeding  is  nominally  by  orig- 
inal or  by  bill,  as  in  other  actions,  no  original  or  writ  of 
process  is  in  fact  ever  used.  The  whole  method  of  proceeding 
is  anomalous,  and  depends  on  fictions  invented  and  upheld  by 
the  courts  for  the  convenience  of  justice.  An  ejectment  com- 
mences by  delivering  to  the  tenant  in  possession  of  the  prem- 
ises a  declaration  framed  as  against  a  fictitious  defendant 
(for  example,  Richard  Roe)  at  the  suit  of  a  fictitious  plaintiff 
(for  example,  John  Doe).  This  declaration  (when  the  action 
is  brought  as  by  original)  is  framed  as  if  it  had  been  preceded 
by  original  writ  against  Richard  Roe;  but  is  in  fact  the  first 
step  in  the  cause.  Subscribed  to  this  declaration  is  a  notice, 
in  the  form  of  a  letter,  from  the  fictitious  defendant  to  the 
tenant  in  possession,  apprising  the  latter  of  the  nature  and 
object  of  the  proceeding,  and  advising  him  to  appear  in  court, 
in  the  next  term,  to  defend  his  possession.  Accordingly,  in 
the  next  term,  the  tenant  in  possession  obtains  a  rule  of  court 
allowing  him  to  be  made  defendant,  instead  of  Richard  Roe, 
upon  certain  terms  prescribed  by  the  court  for  the  convenient 
trial  of  the  title  —  among  others,  his  appearing,  and  receiving 
without  writ  or  process,  a  new  declaration  like  the  first,  but 
with  his  own  name  inserted  as  defendant, —  and  pleading 
thereto.  The  form  of  such  new  declaration  is  as  follows:  * 

DECLARATION   IN   EJECTMENT. 

In  the  King's  Bench. 

Term,  in  the year  of  the  reign 

of  King  George  the  fourth. 

to  wit,  C.  D.  was  attached  to  answer  John  Doe  of  a 

plea  wherefore  he,  the  said  C.  D.,  with  force  and  arms,  en- 
tered into  five  messuages,  five  stables,  five  coach-houses,  five 
yards,  and  five  gardens,  situate  and  being  in  the  parish  of 
,  in  the  county  of  ,  which  A.  B.  (c}  had  demised  to 

(c)  This  is  the  name  of  the  party  who  really  institutes  the  suit,  called  the  "  lessor  of  th« 
plaintiff,"  and  so  distinguished  from  the  nominal  plaintiff,  John  Doe. 

1  The  ancient  fictions  used  in  this  action  have  been  long  since  abandoned. 


§  94.]  PROCEEDINGS   IN  AN   ACTION.  163 

the  said  John  Doe  for  a  term  which  is  not  yet  expired,  and 
ejected  him  from  his  said  farm,  and  other  wrongs  to  the  said 
John  Doe  there  did,  to  the  damage  of  the  said  John  Doe,  and 
against  the  peace  of  our  said  lord  the  now  king;  and  there- 
upon the  said  John  Doe,  by ,  his  attorney,  complains : 

For  that  whereas  the  said  A.  B.  heretofore,  to  wit,  on  the 

day  of ,  in  the  year  of  our  Lord ,  in  the  parish 

aforesaid,  in  the  county  aforesaid,  had  demised  the  said  ten- 
ements, with  the  appurtenances,  to  the  said  John  Doe,  to  have 
and  to  hold  the  same  to  the  said  John  Doe  and  his  assigns 
from  the day  of -,  in  the  year  aforesaid,  for  and  dur- 
ing, and  unto  the  full  end  and  term  of years  from  thence 

next  ensuing,  and  fully  to  be  complete  and  ended.  By  virtue 
of  which  said  demise  the  said  John  Doe  entered  into  the  said 
tenements,  with  the  appurtenances,  and  became  and  was 
thereof  possessed  for  the  said  term  so  to  him  thereof  granted 
as  aforesaid.  And  the  said  John  Doe  being  so  thereof  pos- 
sessed, the  said  C.  D.  afterwards,  to  wit,  on  the  day  of 

,  in  the  year  aforesaid,  with  force  and  arms  entered  into 

the  said  tenements,  with  the  appurtenances,  in  which  the  said 
John  Doe  was  so  interested,  in  manner  and  for  the  term 
aforesaid,  which  is  not  expired,  and  ejected  him,  the  said  John 
Doe,  out  of  his  said  farm,  and  other  wrongs  to  the  said  John 
Doe  then  and  there  did,  against  the  peace  of  our  said  lord  the 

king,  and  to  the  damage  of  the  said  John  Doe  of pounds ; 

and  therefore  he  brings  his  suit,  etc. 

DECLARATION  IN  TRESPASS   ON  THE  CASE,  (d) 

In  Assumpsit. 
For  goods  sold  and  delivered. 

In  the  King's  Bench. 

Term,  in  the  year  of  the  reign 

of  King  George  the  Fourth. 

,  to  wit,  C.  D.  was  attached  to  answer  A.  B.  of  a  plea 

of  trespass  on  the  case;  and  thereupon  the  said  A.  B.,  by 

,  his  attorney,  complains:  For  that  whereas  the  said 

C.  D.  heretofore,  to  wit,  on  the  day  of ,  in  the  year 

of  our  Lord ,  at ,  in  the  county  of ,  was  iudebted 

to  the  said  A.'  B.  in  the  sum  of pounds,  of  lawful  money 

of  Great  Britain,  for  divers  goods,  wares  and  merchandises 
fry  the  said  A.  B.  before  that  time  sold  and  delivered  to  the 
said  C.  D.  at  his  special  instance  and  request ;  and  being  so 
indebted,  he,  the  said  C.  D.,  in  consideration  thereof,  after- 
wards, to  wit,  on  the  day  and  year  aforesaid,  at  afore- 
said, in  the  county  aforesaid,  undertook  and  faithfully  prom- 
ised the  said  A.  B.  to  pay  him  the  said  sum  of  money  when 

(<i)  See  the  Original  Writ.  [Omitted.] 


164:  CAUSES   AND  FORMS   OF  ACTION.  [§  94r. 

he,  the  said  0.  D.,  should  be  thereto  afterwards  requested. 
Tet  the  said  C.  D.,  not  regarding  his  said  promise  [and  under- 
taking, but  contriving  and  fraudulently  intending  craftily  and 
subtilly  to  deceive  and  defraud  the  said  A.  B.  in  this  behalf],1 
hath  not  yet  paid  the  said  sum  of  money,  or  any  part  thereof, 
to  the  said  A.  B.,  although  oftentimes  afterwards  requested. 
But  the  said  C.  D.,  to  pay  the  same,  or  any  part  thereof,  hath 
hitherto  wholly  refused,  and  still  refuses,  to  the  damage  of  the 
said  A.  B.  of pounds;  and  therefore  he  brings  his  suit,  etc.2 

• 

DECLARATION   IN  TRESPASS   ON   THE   CASE. 

In  Trover.3 
In  the  King's  Bench. 

-  Term,  in  the year  of  the  reign 

of  King  George  the  Fourth. 

,  to  wit,  C.  D.  was  attached  to  answer  A.  B.  of  a  plea 

of  trespass  on  the  case;  and  thereupon   the  said  A.  B.,  by 
— ,  his  attorney,  complains:  For  that  whereas  the  said 

A.  B.  heretofore,  to  wit,  on  the day  of ,  in  the  year 

of  our  Lord ,  at ,  in  the  county  of ,  was  lawfully 

possessed,  as  of  his  own  property,  of  certain  goods  and  chat- 
tels, to  wit,  twenty  tables  and  twenty  chairs  of  great  value, 

to  wit,  of  the  value  of pounds,  of  lawful  money  of  Great 

Britain;  and  being  so  possessed  thereof,  he,  the  said  A.  B., 

afterwards,  to  wit,  on  the  day  and  year  aforesaid,  at 

aforesaid,  in  the  county  aforesaid,  casually  lost  the  said  goods 
and  chattels  out  of  his  possession;  and  the  same  afterwards, 

to  wit,  on  the  day  and  year  aforesaid,  at aforesaid,  in  the 

county  aforesaid,  came  to  the  possession  of  the  said  C.  D.  by 
finding.  Yet  the  said  C.  D.,  well  knowing  the  said  goods  and 
chattels  to  be  the  property  of  the  said  A.  B.,  and  of  right  to 
belong  and  appertain  to  him,  but  contriving  and  fraudulently 
intending  craftily  and  subtilly  to  deceive  and  defraud  the  said 
A.  B.  in  this  behalf,  hath  not  as  yet  delivered  the  said  goods 
and  chattels,  or  any  part  thereof,  to  the  said  A.  B.  (although 
often  requested  so  to  do);  but  so  to  do  hath  hitherto  wholly 

refused,  and  still  refuses;  and  afterwards,  to  wit,  on  the * 

day  of  -  — ,  in  the  year ,  at aforesaid,  in  the  county 

!This  clause  states  what  was  an-  8The  description  of  the  property 

ciently  the  gist  of  the  action  on  the  need  not  be  as  certain  as  in  detinue 

case  —  the  tort;  but  in  modern  view  or  replevin,  for  only  damages  are 

the  implied  promise  takes  its  place,  sought;  a  "parcel  of  diamonds"  is 

and  the  clause  is  omitted  from  modern  sufficient  (White  v.  Graham,  2  Str. 

precedents.    See  History  of  Assump-  809);  seventy  ounces  of  cloves,  mace 

sit,  by  J.  B.  Ames,  2  Harv.  Law  Rev.,  and  nutmegs  (Hartford  v.  Jones,  1 

pp.  1-54;  Andrews'  Am.  Law,  p.  1049.  Ld.  Raym.  588);  $3,000  in  bank  notes 

2  This  is  one  of  the  common  counts.  (Henry  v.  Sowles,  28  Fed.  R.  521). 
See  Terry  v.  Hunger,  121  N.  Y.  161. 


§94.] 


PROCEEDINGS    IN   AN   ACTION. 


165 


aforesaid,  converted1  and  disposed  of2  the  said  goods  and  chat- 
tels to  his,  the  said  0.  D.'s,  own  use,  to  the  damage 3  of  the  said 
A.  B.  of ;  and  therefore  he  brings  his  suit,  etc. 

DECLARATION    IN   TEESPASS    ON   THE   CASE. 


[Defamation.]    For  a  libel. 


In  the  King's  Bench. 


Term,  in  the year  of  the  reign  of 

King  George  the  Fourth. 
,  to  wit,  C.  D.  was  attached  to  answer  A.  B.  of  a  plea  of 


trespass  on  the  case ;  and  thereupon  the  said  A.  B.,  by 

his  attorney,  complains: 

For  that  whereas  the  said  A.  B.  now  is  a 
good,  true  and  honest  subject  of  this  realm,  and 
as  such  hath  always  conducted  himself;  and, 
until  the  committing  of  the  grievance  herein- 
after mentioned,  was  always  reputed  to  be  a 
person  of  good  fame  and  credit,  and  hath  never 
been  guilty,  nor,  until  the  committing  of  the 
said  grievance,  been  suspected  to  have  been 
guilty,  of  perjury,  or  any  other  such  crime; 
by  means  of  which  said  premises,  he,  the  said 
A.  B.,  before  the  committing  of  the  said  griev- 
ance, had  deservedly  obtained  the  good  opin- 
ion of  all  his  neighbors,  and  of  all  other  persons 

to  whom  he  was  known,  to  wit,  at ,  in  the 

county  of .     And  whereas,  before  the  com- 

"  mitting  of  the  said  grievance,  a  certain  action 
had  been  depending  in  the  court  of  our  lord, 
the  now  king,  before  the  king  himself  at  West- 
minster, in  the  county  of  Middlesex,  wherein 


This  inducement 
is  unnecessary  be- 
cause it  is  implied. 


This  inducement 
shows  the  situation 
of  the  parties,  and 
is  necessary  and 
proper. 


1  The  word  "  conversion  "  is  a  neces- 
sary word  in  the  description  of  the 
cause  of  action,  and  is  a  technical 
word,  ex  vi  termini  importing  a 
wrong,  and  hence  there  can  be  no 
plea  in  confession  and  avoidance  to 
the  declaration.  Young  v.  Cooper, 
6  Exch.  259,  Ames' Cases,  63;  Hurst 
v.  Cook,  19  Wend.  463;  Stephenson 
v.  Little,  10  Mich.  433.  The  English 
rules,  H.  T.  4  Will  4,  have  changed 
the  scope  of  the  general  issue  in  such 
cases  and  allowed  special  plea  of  jus- 
tification, and  the  example  has  been 
followed  by  statutes  and  codes  in 
America;  but  in  such  case  the  de- 
fendant justifies  the  acts  alleged  and 


avers  them  to  be  the  supposed  con- 
version, etc.  Most  of  the  works  upon 
pleading  since  the  rules  above  re- 
ferred to  do  not  keep  the  old  distinc- 
tion in  view,  and  are  apt  to  mislead. 
A  very  instructive  case  closely  fol- 
lowing these  rules  is  Stancliff  v. 
Hardwick,  2  Cromp.,  M.  &  R.  1. 

2  As  we  have  seen,  this  fact  is  not 
a  necessary  one. 

3  The  damages  are  not  confined  to 
the  value  of  the  goods,  but  may  in- 
clude exemplary  damages  for  out- 
rageous acts  accompanying  the  tort. 
Forsythe  v.   Wells,  41   Pa.  St.  291; 
Dartmouth  College  v.  Woodward,  4 
Wheat,  518. 


166 


CAUSES   AND   FOKMS    OF   ACTION. 


[§94. 


day  of 


one  E.  F.  was  the  plaintiff,  and  one  G-.  II.  was 
the  defendant,  which  said  action  had  been  then, 
lately  tried  at  the  assizes  in  and  for  the  county 

of ;  and  on  such  trial  the  said  A.  B.  had 

been  examined  on  oath,  and  had  given  his  evi- 
dence as  a  witness  on  the  part  of  the  said  E.  F., 

to  wit,  at  aforesaid,  in  the  county  last 

aforesaid,  yet  the  said  C.  IX,  well  knowing  the 
premises,  but  greatly  envying  the  happy  con- 
dition of  the  said  A.  B.,  and  contriving  and 
wickedly  and  maliciously  intending  to  injure 
the  said  A.  B.  in  his  said  good  fame  and  credit, 
and  to  bring  him  into  public  scandal,  infamy 
and  disgrace,  and  to  cause  it  to  be  suspected 
and  believed  that  the  said  A.  B.  had  been 
guilty  of  perjury,  heretofore,  to  wit,  on  the 
— ,  in  the  year  of  our  Lord ,  at afore- 


Venue  —  The  - 
charge,  in  part. 


said,  in  the  county  last  aforesaid  falsely,  wickedly  and  mali- 
"  ciously  did  compose  and  publish,  and  cause  and 
procure  to  be  published,  of  and  concerning  the 
said  A.  B.,  and  of  and  concerning  the  said  ac- 
tion, and  the  evidence  so  given  by  the  said  A.  B., 
a  certain  false,  scandalous,  malicious  and  de- 
famatory libel,  containing  (among  other  things) 
the  false,  scandalous,  defamatory  and  libelous 
matter  following,  of  and  concerning  the  said 
A.  .Z?.,1  and  of  and  concerning  the  said  action, 
[_  and  the  evidence  so  given  by  the  said  A.  B. ; 
that  is  to  say,  he  (meaning  the  said  A.  B.)  was  forsworn  on  the 
trial  (^meaning  the  said  trial,  and  thereby  then  and  there  meaning 
(  that  the  said  A.  B^  in  giving  his  evidence  as 
The  innuendo.      J  aforesaid^  had  committed  wilful  and  corrupt 
(  perjury}.    By  means  of  the   committing   of 
which  grievance,  he,  the  said  A.  B.,  hath  been  and  is  greatly 
injured  in  his  good  fame  and  credit,  and  brought  into  public 
scandal,  infamy  and  disgrace,  insomuch  that  divers  good  and 
worthy  subjects  of  this  realm  have,  by  reason  of  the  committing 
of  the  said  grievance,  suspected  and  believed,  and  still  do  sus- 
pect and  believe,  the  said  A.  B.  to  have  been  guilty  of  perjury; 
and  have,  by  reason  of  the  committing  of  the  said  grievance, 
from  thenceforth  hitherto  wholly  refused  to  have  any  transac- 
tion or  acquaintance  with  the  said  A.  B.  as  they  otherwise 

would  have  had,  to  the  damage  of  the  said  A.  B.  of pounds; 

and  therefore  he  brings  his  suit,  etc.2 


1  The  "  of  and  concerning,"  etc.,  is 
the  colloquium. 

2  Defamation  is  the  generic  term 
for  injuries  to  one  by  means  of  false 


statements  as  to  his  reputation, 
character  or  business.  Oral  state- 
ments are  called  slander,  and  all 
others,  whether  by  writing,  pictures, 


§94-] 


PROCEEDINGS   IN   AN   ACTION. 


167 


With  respect  to  replevin,  we  have  already  seen  (g)  that  it  is 
not  commenced  in  the  superior  courts,  and  consequently  that 


(sr)  Supra,  p.  138.  . 

signs,  etc.,  are  libels.  Cooley,  Torts, 
p.  193. 

The  gist  of  the  action  is  malice. 
Gilmer  v.  Eubank,  13  111.  271;  Newell 
on  Defamation,  pp.  322-23.  Malice 
is  implied  from  the  use  of  actionable 
words.  Mitchell  v.  Milholland,  106 
111.  175;  92  id.  347.  And  proof  that 
there  was  in  fact  no  malice  can  be 
heard  only  in  mitigation  of  exem- 
plary or  punitive  damages.  Rearick 
v.  Wilcox,  81  111.  80;  Gilmer  v.  Eu- 
bank, supra. 

Oral  words,  independently  of  stat- 
ute, spoken  of  a  person,  to  be  action- 
able per  se,  must  impute  the  guilt  of 
some  criminal  offense  for  which  the 
party  may  be  indicted  and  punished. 
Strauss  v.  Meyers,  48  111.  385;  Colby 
v.  Reynolds,  6  Vt  489,  27  Am.  Dec. 
574;  Sanderson  v.  Caldwell,  45  N.  Y. 
405.  Or  they  must  be  accompanied 
by  special  damages,  or  affect  him  in 
his  social  standing.  Colby  v.  Rey- 
nolds, 6  Vt.  489,  27  Am.  Dec.  574; 
Joannes  v.  Bent,  88  Mass.  236;  Tegg 
v.  Dunleavy,  80  Mo.  558,  52  Am.  R. 
512;  Newell  on  Defamation,  p.  84 

Words  printed  and  published  of  a 
man  may  be  actionable  which  if 
only  spoken  of  him  would  not  sus- 
tain an  action  for  slander.  Colby  v. 
Reynolds,  6  Vt.  489,  27  Am.  Dec.  574; 
Starkie  on  Slander,  p.  140;  Weiss  v. 
Whittemore,  28  Mich.  377;  Strauss 
v.  Meyer,  48  111.  385.  See  Cooper  v. 
Greeley,  1  Den.  347;  Newell  on  Defa- 
mation, p.  33.  Mr.  Townshend  says 
this  distinction  is  not  recognized  as 
to  words  written  of  one  in  a  special 
character  or  business.  Townshend 
on  Slander  &  L.,  §  180.  See  also  Id., 
p.  68,  note.  But  to  the  contrary  see 
Weiss  v.  Whittemore,  supra. 

Any  words  which  in  common  ac- 
ceptation imply  a  want  of  credit  or 
responsibility  when  spoken  of  a  mer- 


chant are  actionable.  Sewell  v.  Cat 
lin,  3  Wend.  291;  Ostroni  v.  Calkins, 
5  Wend.  264.  See  also  Sutherland  v. 
Bradstreet,  46  N.  Y.  188, 7  Am.  R.  322. 

Words  spoken  of  one  in  regard  to 
or  concerning  him  in  his  office,  trade 
or  business  may  be  actionable,  which 
would  not  be  if  spoken  of  him  as  an 
individual  only.  They  need  not  im- 
pute a  crime.  Burtch  v.  Nickerson, 
17  Johns.  217,  8  Am.  Dec.  390;  Town- 
shend on  S.  &  L.,  §§179,  180,  181; 
Fowler  v.  Bowen,  30  N.  Y.  24;  Nelson 
v.  Borchenius,  52  111.  236;  Cooley  on 
Torts,  196;  Weiss  v.  Whittemore,  28 
Mich.  366.  Words  implying  unchas- 
tity,  spoken  of  a  woman,  are  not  ac- 
tionable per  se  (except  by  statute), 
but  may  be  made  so  by  allegation 
and  proof  of  special  damage;  but 
such  a  charge  written  or  printed  is 
so.  Pollard  v.  Lyon,  91  U.  S.  225. 

The  parts  of  the  declaration  after 
the  title,  court  and  parties  are:  The 
inducement,  the  charge,  the  allega- 
tion of  damages. 

The  inducement:  This  contains  a 
statement  of  the  facts  which  render 
the  application  of  the  charge  clear 
and  intelligible.  It  is  usual  to  recite 
the  good  standing  and  favorable 
standing  of  the  plaintiff  in  the  eyes 
of  the  community,  his  purity  and  in- 
nocence, especially  in  regard  to  the 
things  charged,  but  these  are  unnec- 
essary and  not  traversable.  Newell 
on  Def.  601.  But  the  inducement 
explaining  the  situation  and  relation 
of  the  parties  is  often  useful  and 
necessary,  when  the  mere  charge 
would  not  be  clear  in  application 
and  meaning.  If  the  charge  relates 
to  one  in  his  business,  the  statement 
that  he  is  in  such  business  or  employ- 
ment is  inducement.  Id.  603;  Carter 
v.  Antrim,  33  Mass.  1. 

The  charging  part  is  the  part  which 


168 


CAUSES    AND   FORMS    OF   ACTION. 


[§94. 


no  original  writ  is  sued  out.    The  form  of  the  declaration  is 
as  follows: 


DECLARATION   IN   REPLEVIN. 


In  the  King's  Bench. 


—  Term  in  the year  of  the  reign 

of  King  George  the  Fourth. 

to  wit,  C.  D.  was  summoned  to  answer  A.  B.  of  a  plea 

wherefore  he  took  the  cattle  of  the  said  A.  B.,  and  unjustly 
detained  the  same,  against  sureties  and  pledges,  until,  etc.; 


states  the  offense,  and  includes  the 
colloquium,  the  statement  of  the  de- 
famatory words  used  by  the  defend- 
ant, and  the  innuendoes.  In  charg- 
ing the  words  it  is  sufficient  to  set 
out  the  material  words.  Spencer  v. 
McMaster,  16  III  405.  Proof  of  the 
substance  of  the  words  charged  is 
sufficient,  but  not  of  equivalent 
words.  Slocum  v.  Kuykendall,  1 
Scam.  187;  Schmisseur  v.  Kreilich, 
92  111.  347;  Norton  v.  Gordon,  16  id. 
38;  Spencer  v.  McMaster,  supra; 
Thomas  v.  Fischer,  71  111.  576.  It  is 
not  necessary  to  prove  all  the  words. 
Wilborn  v.  Odell,  29  III  456;  Grotty 
v.  Morissey,  40  id.  477;  Baker  v. 
Young,  44  id.  42.  Nor  is  it  fatal  that 
more  are  proved,  if  they  do  not  de- 
stroy the  effect  of  those  charged. 
Spencer  v.  McMaster,  supra;  Sanford 
v.  Gaddis,  15  111.  228;  Wilborn  v. 
Odell,  supra. 

The  colloquium  is  an  averment  con- 
nected with  the  inducement  and  the 
charge,  showing  that  the  words  were 
spoken  of  and  concerning  the  plaint- 
iff, and  if  that  fact  is  plain  from  the 
language  itself,  no  colloquium  is  nec- 
essary; but  the  inducement  should 
show  the  identity  of  the  plaintiff  and 
the  person  named  in  the  words,  so 
that  a  colloquium  is  never  out  of 
place.  Newell  on  Defamation,  613. 

The  innuendo  is  an  allegation  ex- 
planatory of  the  meaning  which  the 
plaintiff  charges  the  defendant  to 
have  intended  by  the  words.  When 
the  words  are  clear  it  is  not  necessary 


to  use  an  innuendo,  and  the  meaning 
of  the  words  is  matter  of  law  for  the 
court  to  determine.  Lewis  v.  Chap- 
man, 16  N.  Y.  371;  Elam  v.  Badger, 
23  111.  498;  Bathrick  v.  Detroit  P. 
&  F.  Co.,  50  Mich.  629;  Newell  on 
Defamation,  629.  When  the  words 
are  couched  in  ambiguous  language 
it  is  the  office  of  the  innuendo  to 
explain  it.  Gibson  v.  Williams,  4 
Wend.  320.  In  such  cases  it  is  for 
the  court  to  decide  whether  the  lan- 
guage used  is  capable  of  the  mean- 
ing ascribed  in  the  innuendo.  Newell 
on  Defamation,  619.  Whether  such 
meaning  was  the  one  intended  is  the 
question  for  the  jury.  Id.  638.  The 
plaintiff  cannot  shift  his  ground  from 
the  meaning  alleged  to  another.  Id. ; 
Strader  v.  Snyder,  67  111.  404;  Newell 
on  Defamation,  629.  Evidence  of 
hearers  as  to  how  they  understood 
the  words  is  admissible.  Nelson  v. 
Borchenius,  52  111.  236. 

The  allegation  of  damages  may  be 
simply  the  usual  allegation  of  injury, 
or  damages  arising  from  special  cir- 
cumstances, which  must  be  set  forth, 
and  when  the  language  is  not  action- 
able such  an  allegation  is  necessary. 
Newell  on  Defamation,  849.  The  gen- 
eral issue  admits  the  inducement 
that  the  charge  was  untrue.  Thomas 
v.  Dunaway,  30  111.  373.  And  it  is 
generally  held  that  no  proof,  even  for 
the  purpose  of  mitigating  the  dam- 
ages, can  be  heard  which  tends  to 
prove  the  charge  to  be  true.  Thomas 
v.  Dunaway,  supra;  Eegnier  v.  Cabot, 


§94.] 


PROCEEDINGS    IN   AN   ACTION. 


1G9 


and  thereupon  the  said  A.  B.,  by ,  his  attorney,  com- 
plains: For  that  the  said  C.  D.  heretofore,  to  wit,  on  the  — — 

day  of  ,  in  the  year  of  our  Lord  ,  at  ,  in  the 

county  of ,  in  a  certain  place  there  called ,  took  the 

cattle,  to  wit,  one  mare,  of  the  said  A.  B.,  of  great  value, 

to  wit,  of  the  value  of pounds,  and  unjustly  detained  the 

same,  against  sureties  and  pledges,  until,  etc.     Wherefore  the 
said  A.  B.  saith  that  he  is  injured,  and  hath  sustained  damage 

to  the  value  of pounds;  and  therefore  he  brings  his  suit, 

etc. (h) 

MODERN   DECLARATION   IN   TRESPASS    ON   THE    CASE    FOR    MALICIOUS 


STATE  OF 


County  of  • 


PROSECUTION.1 


ss.     In  the  Circuit  Court. 


To  the  March  Term,  A.  D.  1901. 
A.  B.,  plaintiff,  by  C.  D.,  his  attorney,  complains  of  E.  F., 
defendant,  of  a  plea  of  trespass  on  the  case,  for  that  whereas 
the  plaintiff  now  is  a  good  and  honest  citizen  of  this  state,  and 
as  such  has  always  behaved  himself,  and  has  not  ever  been 


(h)  8  Went.  24. 

2  Gilm.  38;  Shehan  v.  Collins,  20  El. 
328;  Storey  v.  Early,  86  id.  461; 
Newell  on  Defamation,  790. 

The  general  issue  denies  the  speak- 
ing, and,  even  if  a  plea  of  justification 
is  also  filed,  the  plaintiff  must  prove 
the  speaking.  Farnan  v.  Childs,  66 
III  544;  formerly  contra,  Aldermann 
v.  French,  1  Pick.  1. 

It  has  been  held  that  the  malice 
is  always  in  issue,  and  that  on  that 
question  the  burden  is  upon  the 
plaintiff,  and  consequently  no  plea  of 
justification  can  cover  that  ground 
and  entitle  the  defendant  to  open 
and  close.  See  Best's  Right  to  Begin, 
120,  note;  Thompson  on  Trial,  §  230; 
Fry  v.  Bennett,  28  N.  Y.  324;  Mercer 
v.  Wholl,  5  Ad.  &  El.  447-53.  See  gen- 
erally, Oilman  v.  Lowell,  8  Wend.  596, 
24  Am.  Dec.  96.  But  other  authori- 
ties hold  the  opposite,  and  the  lex  loci 
must-  be  examined  in  each  case. 
Newell  on  Def.  811 ;  McCoy  v.  McCoy, 
106  Ind.  492;  Vifquain  v.  Finch,  15 
Neb.  505.  The  damages  may  be  con- 
sequential and  punitive  (1  Suther- 


land on  Dam.  66,  717;  Cutler  v. 
Smith,  57  111.  252);  and  in  some  ju- 
risdictions may  include  attorneys' 
fees  for  prosecuting  the  suit.  Finney 
v.  Smith,  31  Ohio  St.  529,  27  Am.  R. 
524,  note.  Contra,  Hoadley  v.  Wat- 
son, 45  Vt.  298,  12  Am.  R.  197,  note. 
Codes  and  statutes  have  modified  the 
rules  as  to  the  effect  of  pleading  in 
such  cases.  See  Oilman  v.  Lowell,  8 
Wend.  373,  24  Am.  Dec.  96,  note. 

1  Malicious  prosecution  is  another 
action  on  the  case  akin  to  slander 
and  libel,  and  in  which  malice  is  the 
gist  of  the  action.  In  some  cases 
where  an  arrest  has  been  made  it  is 
difficult  to  tell  whether  the  remedy 
is  case  or  trespass,  as  in  both  the 
force  may  be  the  same. 

Malicious  prosecution  consists  in 
instituting  a  suit  or  proceeding  with- 
out probable  cause,  with  malice,  and 
generally  which  has  terminated  in 
favor  of  the  accused.  Cooley  on 
Torts.  181.  See  Josselyn  v.  McAllis- 
ter, 22  Mich.  300.  The  great  leading 
case  in  America  is  Savacooi  v. 


170 


CAUSES   AND   FORMS    OF   ACTION. 


[ 


guilty,  or  until  the  time  of  the  committing  of  the  several  griev- 
ances by  the  defendant,  as  hereinafter  mentioned,  been  sus- 
pected to  have  been  guilty  of  larceny,  or  of  any  other  such 
crime,  by  means  whereof  the  plaintiff,  before  the  committing 
of  the  said  grievances,  had  deservedly  obtained  the  good  opin- 


Boughton,  5  Wend.  170,  exhaustively 
annotated  in  21  Am.  Dec.  181-209. 
Action  will  lie  for  suing  out  civil 
process.  Lawrence  v.  Hageman,  56 
111.  69;  Cooley  on  Torts,  187,  note  5; 
Spaids  v.  Barrett,  57  111.  290.  Mali- 
cious prosecution  will  lie  for  mali- 
ciously suing  out  capias  or  attach- 
ment, even  though  there  was  a  valid 
debt,  if  there  was  no  probable  cause 
for  the  capias  or  attachment.  In 
such  a  case  there  is  no  need  that  the 
prosecution  be  ended.  See  Josselyn 
v.  McAllister,  22  Mich.  300;  Cooley  on 
Torts,  188, 187,  notes;  Spaids  v.  Bar- 
rett, 57  III  289;  Tomlinson  v.  War- 
ner, 9  Ohio,  104;  Collins  v.  Hayte, 
50  111.  837;  Nelson  v.  Danielson,  82  id. 
545.  See  valuable  note  to  Williams 
v.  Hunter,  3  Hawks  (N.  C.),  545,  14 
Am.  Dec.  597-603.  Causing  arrest 
for  more  than  what  plaintiff  knows 
is  due  is  malicious  prosecution.  Aus- 
tin v.  Debnam,  3  B.  &  C.  139. 

Trespass  for  false  imprisonment 
will  not  lie  for  an  arrest  on  process 
unless  it  was  void  or  annulled  at 
time  of  arrest,  even  though  it  was 
prosecuted  without  probable  cause 
and  with  malice.  Case  is  the  only 
remedy.  Plummer  v.  Dennett,  6 
Greenl.  421,  20  Am.  Dec.  316;  Mex. 
Cent.  Ry.  Co.  v.  Gehr,  66  111.  App.  173; 
Thompson  v.  Ellsworth,  39  Mich.  720; 
1  Waterman  on  Trespass,  §  307;  1 
Chitty,  PL  184;  Tryon  v.  Pingree,  112 
Mich.  338,  70  N.  W.  R.  905.  Trespass 
for  false  imprisonment  is  for  an  act 
manifestly  (prima  facie)  illegal.  1 
Waterman,  §  367;  1  Billiard,  415. 
But  is  this  true  as  to  plaintiff  in  ca- 
pias suit?  McGuinty  v.  Herrick,  5 
Wend.  245. 

The  form  of  action. —  Case  will  lie 
to  recover  all  the  damages  on  ac- 


count of  a  malicious  and  causeless 
prosecution,  even  if  accompanied 
with  imprisonment,  and  although 
court  has  no  jurisdiction  or  proceed- 
ings void.  Stone  v.  Stevens,  12  Conn. 
219,  30  Am.  Dec.  611;  Humphrey's 
Case,  8  Conn.  101, 20  Am.  Dec.  95;  Tur- 
ner v.  Walker,  3  Gill  &  J.  377,  22  Am. 
Dec.  329;  1  Waterman  on  Trespass, 
§  367,  nota 

If  the  process  is  regular  (not  void 
at  time  of  arrest)  the  only  remedy  is 
case  for  malice,  etc.  Blalock  v.  Ran- 
dall, 76  I1L  228.  If  there  is  some 
legal  evidence,  however  slight,  tend- 
ing to  prove  all  essentials,  the  pro- 
cess is  not  void.  Bassett  v.  Bratton, 
86  111.  152;  Johnson  v.  Maxon,  23  Mich. 
129;  Cooley  on  Torts,  173. 

If  the  process  is  not  void,  but  only 
erroneous,  only  want  of  probable 
cause  and  malice  will  render  prose- 
cutor liable,  and  case  is  the  only 
remedy.  1  Waterman  on  Trespass, 
§  307;  Bassett  v.  Bratton,  86  111.  152; 
Johnson  v.  Maxon,  23  Mich.  129. 
Case  for  malicious  prosecution  is  for 
an  act  manifestly  legal  (but  mali- 
cious, etc.).  1  Billiard  on  Torts,  415; 
1  Waterman  on  Trespass,  §  328. 
Legal  advice  must  be  upon  full  state- 
ment of  facts.  1  Hilliard  on  Torts, 
437.  If  actual  malice  is  found,  legal 
advice  amounts  to  nothing.  1  Hilli- 
ard on  Torts,  43a 

Malice  is  usually  a  mixed  question 
of  law  and  fact,  but  by  pleadings  it 
may  be  a  question  for  the  court. 
Kelton  v.  Bevins,  Cooke  (Tejin.),  90, 
5  Am.  Dec.  671;  Miller  v.  Brown,  3 
Mo.  127,  23  Am.  Dec.  692.  Defend- 
ant's conduct,  declarations,  forward- 
ness, zeal,  etc.,  are  evidence  of  malice. 
Turner  v.  Walker,  3  Gill  &  J.  377, 
22  Am.  Dec.  329.  If  men  take  the 


§  94.]  PKOCEEDINGS   IN   AN   ACTION.  171 

ion  and  credit  of  all  his  neighbors,  and  other  worthy  citizens 
of  this  state;  yet  the  defendant,  well  knowing  the  premises, 
but  contriving  and  maliciously  intending  to  injure  the  plaint- 
iff in  his  aforesaid  good  name,  fame  and  credit,  and  to  bring 
him  into  public  scandal,  infamy  and  disgrace,  and  to  cause  the 
plaintiff  to  be  imprisoned  for  a  lon^  space  of  time,  and  thereby 
to  impoverish,  oppress  and  ruin  him,  on,  etc.,  went  and  ap- 
peared before  one  E.  F.,  Esq.,  then  and  there  being  one  of  the 
justices  of  the  peace  in  and  for  the  county  aforesaid,  and  then 
and  there,  before  the  said  E.  F.,  so  being 'such  justice  as  afore- 
said, falsely  and  maliciously,  and  without  any  reasonable  or 
probable  cause  whatsoever,  charged  the  plaintiff  with  having 
feloniously  stolen  a  certain  gold  watch  of  the  defendant;  and 
upon  such  charge  the  defendant  falsely  and  maliciously,  and 
without  any  reasonable  or  probable  cause  whatsoever,  caused 
and  procured  the  said  E.  F.,  so  being  such  justice  as  aforesaid, 
to  make  and  grant  his  certain  warrant,  under  his  hand,  for  the 
apprehending  and  taking  of  the  plaintiff,  and  for  bringing  the 
plaintiff  before  him,  the  said  E.  F.,  or  some  other  justice  of 
the  peace  in  and  for  the  said  count5T,  to  be  dealt  with  accord- 
ing to  law  for  the  said  supposed  offense;  and  the  defendant, 
under  and  by  virtue  of  the  said  warrant,  afterwards,  to  wit, 
on  the  day  aforesaid,  there  wrongfully  and  unjustly,  and  with- 
out any  reasonable  or  probable  cause  whatsoever,  caused  and 
procured  the  plaintiff  to  be  arrested  by  his  body,  and  to  be  im- 
prisoned, and  kept  in  prison  for  the  space  of hours  then 

next  following,  and  until  he,  the  defendant,  afterwards,  to  wit, 

law  into  their  own  hands  and  invade  Wend.  417.  Want  of  probable  cause 
the  rights  of  another  it  is  evidence  cannot  be  inferred  from  express 
of  malice.  Farwell  v.  Warner,  51  malice.  Krug  v.  Ward,  77  111.  603. 
I1L  471-2.  Though  the  defendant  act  See  form  of  an  allegation  of  want 
under  advice  and  with  a  belief  that  of  probable  cause.  Spaids  v.  Barrett, 
he  is  right,  he  may  be  guilty  of  ex-  57  111.  290.  Probable  cause  must  be 
press  malice.  Turner  v.  Walker,  3  a  belief  founded  upon  sufficient  cir- 
Gill  &  J.  377,  23  Am.  Dec.  329;  cumstances.  1  Billiard,  436.  Erro 
Jacks  v.  Stimpson,  13  111.  701.  neous  judgment  as  to  the  law  no 
An  acquittal  and  discharge  by  a  defense;  defendant  must  know  it. 
magistrate  having  power  to  bind  Merriam  v.  Mitchell,  13  Me,  439,  29 
over  is  evidence  of  want  of  probable  Am.  Dec.  516.  Probable  cause  not 
cause;  also  refusal  to  find  a  bill  by  a  allowed  to  be  proved  under  general 
grand  jury.  Cooley  on  Torts,  184.  issue.  Fant  v.  McDaniel,  1  Brev. 
The  burden  of  proving  want  of  prob-  (S.  C.)  172,  2  Am.  Dec.  660.  Cf. 
able  cause  is  upon  the  plaintiff.  White  v.  Fox,  1  Bibb,  369,  4  Am. 
Cooley  on  Torts,  184.  A  voluntary  Dec.  643.  Probable  cause  for  arrest, 
discontinuance  of  proceedings  is  not  for  suit,  is  what  is  meant  in  case 
prima  facie  evidence  of  want  of  for  malicious  arrest.  Spaids  v.  Bar- 
probable  cause.  Cooley  on  Torts,  rett,  57  111.  289;  Williams  v.  Hunter, 
187,  note;  Collins  v.  Hayte,  50  III  3  Hawks,  545,  14  Am.  Dec.  600. 
837-353;  Burhans  v.  Sanford,  19 


172  CAUSES   AND   FORMS    OF   ACTION".  [§  94:. 

on,  etc.,  there  falsely  and  maliciously,  and  without  any  reason- 
able or  probable  cause  whatsoever,  caused  and  procured  the 
plaintiff  to  be  carried  in  custody  before  the  said  E.  F.,  so  being 
such  justice  as  aforesaid,  to  be  examined  before  the  said  jus- 
tice, touching  the  said  supposed  offense;  which  said  justice 
having  heard  and  considered  all  that  the  defendant  could  say 
or  allege  against  the  plaintiff  touching  and  concerning  the  said 
supposed  offense,  thereupon  then  and  there  adjudged  and  de- 
termined that  the  plaintiff  was  not  guilty  of  the  said  supposed 
offense,  and  then  and  there  caused  the  plaintiff  to  be  dis- 
charged out  of  custody,  fully  acquitted  and  discharged  of  the 
said  supposed  offense;  and  the  defendant  has  not  further  prose- 
cuted his  said  complaint,  but  has  abandoned  the  same,  and  the 
said  complaint  and  prosecution  are  wholly  ended  and  deter- 
mined. 

By  means  whereof  the  plaintiff  has  been  and  is  greatly  in- 
jured in  his  credit  and  reputation,  and  brought  into  public 
scandal,  infamy  and  disgrace,  with  and  amon^  all  his  neigh- 
bors, and  other  worthy  citizens  of  this  state,  and  divers  of  those 
neighbors  and  citizens,  to  whom  his  innocence  in  the  premises 
was  unknown,  have,  on  occasion  of  the  premises,  suspected  and 
believed,  and  still  do  suspect  and  believe,  that  the  plaintiff  has 
been  and  is  guilty  of  larceny;  and  also  the  plaintiff  has,  by 
means  of  the  premises,  suffered  great  anxiety  and  pain  of  body 
and  mind,  and  has  been  obliged  to  lay  out,  and  has  laid  out, 

divers  large  sums  of  money,  amounting  to  dollars,  in 

and  about  the  procuring  of  his  discharge  from  the  said  im- 
prisonment, and  the  defending  of  himself  in  the  premises,  and 
the  manifestation  of  his  innocence  in  that  behalf,  and  has  been 
greatly  hindered  and  prevented,  by  reason  of  the  premises, 
from  following  and  transacting  his  affairs  and  business,  for  the 

space  of ;  and  also,  by  reason  of  the  premises,  the  plaintiff 

has  been  and  is  otherwise  greatly  injured  in  his  credit  and  cir- 
cumstances :  To  the  damage  of  the  plaintiff  of dollars;  and 

therefore  he  brings  his  suit,  etc. 

DECLARATION   IN   TRESPASS   WITH   FALSE    IMPRISONMENT. 

Caption  and  commencement  as  in  last  precedent,  except  the 
clause  conforming  to  the  writ,  as  follows: 

of  a  pleas  of  trespass,  for  that  *  the  defendant,  on,  etc.,  with 
force  and  arms,2  etc.,  in  the  county  aforesaid,  made  an  assault 
upon  the  plaintiff,  (and  beat,  bruised  and  ill-treated  him),3  and 

1  The  allegation  is  here  simple  and        2  The  allegation  of  force, 
positive  because  the  act  charged  can-       3  If  there  was  in  fact  no  pulling, 
not  beprima  facie  legal ;  hence  there    striking  or  actual  violence,  this  alle- 
is  no  necessity  for  the  explanatory    gation  should  be  omitted, 
clause  called  the  inducement,  recit-- 
ing  "  For  that  whereas,"  etc. 


§  9i.]  PROCEEDINGS   IN   AN   ACTION.  173 

then  and  there  imprisoned  him,  and  detained  him  in  prison, 
there,  without  any  reasonable  or  probable  cause  whatsoever, 

for  the  space  of *  hours  then  next  following,  contrary  to 

the  laws  of  this  state,  and  against  the  will  of  the  plaintiff;  and 
other  wrongs  to  the  plaintiff  then  and  thore  did,  against  the 
peace  of  the  people  of  this  state,  and  to  the  damage  of  the 
plaintiff  of dollars;  and  therefore  he  brings  his  suit,  etc. 

DECLARATION  IN  CASE,  UNDER  VIEGINIA  CODE,  FOR  NEGLIGENCE 
AGAINST  CARRIER  FOR  FAILURE  TO  PROTECT  PASSENGER  FROM 
A  ROBBER  WHO  SHOT  AND  KILLED  HIM. 

In  the  Circuit  Court  of  the  City  of  Richmond.2 

E.  H.  Ball  (and  others),  executors  of  the  last  will  and  testa- 
ment of  D.  F.  Connell,  deceased,  plaintiffs  (by  —  — ,  etc., 
attorney),  complain  of  the  Chesapeake  and  Ohio  Railway  Com- 
pany, a  corporation  duly  chartered,  and  the  Pullman  Palace 
Car  Company,  a  corporation  duly  chartered,  who  have  been 
duly  summoned  to  answer  a  plea  of  trespass  on  the  case,  for 
this,  that  the  said  defendant,  the  Chesapeake  and  Ohio  Rail- 
way Company,  before  and  at  the  time  of  committing  the 
grievances  hereinafter  mentioned,  were  the  owners  and  pro- 
prietors of  the  Chesapeake  and  Ohio  Railway,  and  of  certain 
cars,  coaches  and  locomotives,  owned  or  leased  or  operated  by 
them  for  the  carriage  and  conveyance  of  passengers,  upon  and 
along  said  railway  from  a  certain  place,  to  wit,  Clifton  Forge, 
to  divers  other  places,  and  among  such  other  places  to  Waynes- 
boro  and  Basic  City,  both  in  the  state  of  Virginia,  upon  said 
railway,  for  hire  and  reward  paid  to  them,  the  defendants; 
and  the  said  defendant,  the  Pullman  Palace  Car  Company,  be- 
fore and  at  the  time  of  committing  the  grievances  hereinafter 
mentioned,  were  the  owners  and  proprietors  of  a  certain  car 
or  coach  making  a  part  of  the  train  of,  and  running  upon  the 
tracks  of,  the  Chesapeake  and  Ohio  Railway  from  a  certain 
place,  to  wit,  Clifton  Forge,  to  divers  other  places,  and  among 
such  other  places,  Waynesboro  and  Basic  City,  which  said  car 
was  used  and  operated  by  the  defendants  as  a  sleeping  or  lodg- 

!If  there  was  in  fact  a  valid  war-  state  a  cause  of  action,  in  that  the 

rant,  but  the  action  is  only  unlawful  injury  was  not  a  natural  and  proxi- 

because  malicious,  then  the  form  of  mate  result  of  the  negligence  alleged, 

statement  under  code  and  common  The  court  held  that  negligence  is 

law  must  make  a  case  of  malicious  the  proximate  cause  of  Jin  injury 

prosecution.    Ante,  pp.  169, 170,  note,  when  the  injury  is  the  natural  and 

2  This  is  one  count  in  the  declara-  probable  consequence  of  the  negli- 
tion  in  Connell's  Ex'rs  v.  C.   &  O.  gence  complained  of.  and  the  result 
Ry.  Co.,  93  Va.  44     It  will  serve  to  is  such  as  ought  to  have  been  fore- 
illustrate  the  structure  of  such  counts  seen  under  the  circumstances  in  the 
and  also  the  law.     A  demurrer  was  particular  case, 
sustained  because  the  count  did  not 
12 


174  CAUSES    AND   FORMS   OF   ACTION.  [§  94. 

ing  car  for  the  lodging  of  travelers  for  a  specific  reward  or 
compensation  to  be  paid  defendants  by  such  travelers  as  should 
use  the  same,  being  first-class  passengers  on  said  railway.  That 
heretofore,  to  wit,  on  the  1st  day  of  August,  1891,  in  the  state 
of  Virginia,  at  the  request  of  the  defendants,  the  said  D.  F. 
Connell  became  and  was  a  passenger  in  the  said  sleeping  or 
lodging  coach  or  car  owned  or  leased  or  operated  by  the  de- 
fendants as  aforesaid,  to  be  by  them  safely  and  securely  car- 
ried and  conveyed  thereby  in  a  certain  journey  along  and"  upon 
said  railway,  for  a  certain  reasonable  reward  or  compensation, 
paid  or  rendered  to  the  defendants  therefor  by  the  said  D.  F. 
Connell,  as  such  passenger  as  aforesaid,  and  that  thereupon  it 
became  and  was  the  duty  of  the  said  defendants  to  use  due  and 
proper  care  that  the  said  D.  F.  Connell  should  be  safely  and 
securely  carried  and  conveyed  by,  upon  and  along  said  railway 
as  aforesaid,  and  both  his  person  and  his  property  protected 
from,  violence,  injury  or  loss,  while  a  passenger  as  aforesaid, 
but  that  the  said  defendants  did  not  use  due  and  proper  care 
in  that  behalf,  and  by  their  negligence,  carelessness  and  de- 
fault in  failing  to  keep  a  proper  and  necessary  watch  or  guard, 
and  otherwise,  at  some  point  on  said  railway,  distant  from 
Basic  City,  permitted  some  person,  unknown  to  the  plaintiffs, 
armed  with  a  deadly  weapon,  to  enter  the  said  Pullman  or 
sleeping-car  for  the  purpose  of  robbery  or  murder,  and  through 
their  negligence  and  carelessness,  and  their  failure  to  keep  a 
proper  watch  or  guard,  the  said  person  was  improperly  and 
negligently  permitted  to  remain  on  the  said  sleeping-car,  and, 
at  a  point  on  said  railway  between  Waynesboro  and  Basic 
City,  to  go  to  the  berth  of  the  said  D.  F.  Connell1  and  demand 
his  money,  and,  upon  being  refused,  to  shoot  him  in  the  abdo- 
men or  stomach,  with  a  ball  fired  then  and  there,  from  a  gun 
or  pistol,  without  any  attempt  being  made  by  the  defendants, 
or  its  servants  or  agents,  to  protect  the  said  D.  F.  Connell,  'in- 
flicting thereby  a  deadly  wound,  hurt  and  injury,  from  the 
result  of,  and  in  direct  consequence  of,  which  said  wound  and 
injury  inflicted  as  aforesaid,  the  said  D.  F.  Connell  afterwards, 
to  wit,  on  the  4th  day  of  August,  1891,  died.2  By  means  of 

1  In  most  cases  where  the  ground  passengers,   is   presumed,  until  the 

of  the  action  is  personal  negligence  contrary  is  shown,  to  have  been  in- 

of  defendant  or  his  servants,  it  is  nee-  jured  through  the  negligence  of  the 

essary  to  allege  that  the  person  in-  carrier;  and  upon  proof  of  the  injury 

jured  was  "  then  and  there  exercising  he  has  a  prima  facie  case,  which,  in. 

due  care  for  his  own  safety;"  but  the  absence  of  proof  to  the  contrary, 

a  passenger  who  sustains  an  injury  entitles  him  to  recover  damages  for 

growing  out  of  the  act  of  the  carri-  the  wrong.     Council's  Ex'rs  v.  Rail- 

er's  servants  or  agents,  or  because  of  way  Co.,  supra, 

any  defect  in   machinery,  coaches,  2The  court  held  as  follows:   The 

roadway,  or  other  appliances  con-  liability  of  common  carriers  of  pas- 

nected  with   its   transportation  of  sengers  does  not  flow  directly  from 


§  9±.]  PROCEEDINGS   IN   AN   ACTION.  ITS 

which  said  premises,  in  pursuance  of  the  provisions  of  the  code 
of  Virginia  in  such  cases  made  and  provided,  a  right  of  action 
hath  accrued  to  the  said  plaintiffs,  who  have  since  the  death 
of  the  said  D.  F.  Connell  duly  qualified  as  the  executors  of  his 
estate,  to  demand  and  recover  from  the  said  defendants  dam- 
ages for  the  wrongs  and  injuries  done  and  inflicted  as  afore- 
said, to  wit,  damages  to  the  amount  of  ten  thousand  dollars. 

DECLARATION    IN    CASE    FOE     NEGLIGENT    INJUKY   BY    SERVANT   OF 

DEFENDANT.1 


Court. 


To  the  -  Term,  A.  D.  19—. 
A.  B.,  plaintiff,  by  C.  D.,  his  attorney,  complains  of  the 
C.  C.  K.  Co.,  a  corporation,  of  a  plea  of  trespass  on  the  case, 
for  that  whereas  on,  to  wit  [date],  at,  to  wit  [venue  or  place'], 
the  plaintiff  was  riding  in  a  certain  vehicle  known  as  a  -  , 
drawn  by  two  horses,  upon  and  along  a  certain  street  known 
as  --  ,  and  at  a  point,  to  wit,  where  said  street  intersects  an- 
other street  known  as  -  street,  which  horses  and  carriage 
were  then  possessed  by  the  plaintiff,  and  the  defendant  was 
then  and  there  possessed  of  a  certain  motor  or  grip-car,  used 
by  it  to  propel  cars  known  as  street  cars,  along  and  upon  said 

-  street,  by  means  of  -  power,  and  which  motor  car 
and  street  cars  were  then  and  there  in  charge  and  under  the 
control  and  management  of  the  then  servants  of  the  defend- 
ant,2 who  were  then  and  there  driving  the  same  along  said 

-  street,  near  or  about  the  place  aforesaid;  and  while  the 
plaintiff,  with  due  and  proper  care,8  was  then  and  there  driv- 

the  injuries  sustained,  but  from  their  one  in  2  Chitty,  PI.  *710-11,  approved 

duty  to  convey  their  passengers  in  in  the  above  case.    There  is  danger 

comfort  and  safety.     They  are  re-  of  using  this  form  in  some  jurisdic- 

sponsible  for  injuries  if  it  appears  tions  on  the  ground  of  duplicity,  as 

that  they  knew,  or  ought  to  have  indicated    below.    This    is    readily 

known,  that  danger  existed,  or  was  obviated  by  making  two  counts  — 

reasonably  to  be  apprehended,  and  one  for  the  injury  to  the  person  and 

did  not  use  proper  means  to  avert  it.  one  for  the  injury  to  the  property. 

But  a  sleeping-car  company  is  not  King  v.  C.,  M.  &  St.  P.  Ry.  Co.  (Minn.), 

liable  for  death  of  one  of  its  passen-  82  N.  W.  R  1113. 

gers,  at  the  hands  of  an  assassin,  in  2  Where  the  wrongful  or  negligent 

the  night  time,  who  enters  its  car  act  is  done  by  an  agent  or  servant  it 

by  stealth,  while  traveling  through  must  be  so  alleged,  and  a  bare  allega- 

a   peaceable,    law-abiding   country,  tion  of  an  act  done  by  the  defendant 

This  is  not  a  natural  or  probable  dan-  will  not  admit  proof  of  a  wrong  done 

ger,  nor  one  to  be  anticipated,  against  by  the  agent.     Peyton  v.  Cook  (Tex. 

which  the  company  is  expected  to  Civ.   App.),  32  S.  W.   R   781.    The 

guard  and  protect  its  passengers.  common-law  rule  was  otherwise.    2 

:This  precedent  is  a  combination  Chitty,  PL  *711,  note. 

of  the  precedent  in  Chicago  C.  Ry.  3  This  allegation  is  essential  in  this 

Co.  v.  Jennings,  157  I1L  274,  and  the  case,  but  not  in  the  preceding. 


176  CAUSES   AND   FORMS   OF   ACTION.  [§95. 

ing  along  said street  at  or  near  where,  etc.,  and  in  said 

public  street  and  highway,  the  defendant  then  and  there  by 
its  said  servants  so  carelessly  and  improperly  managed  and 
drove  the  said  motor  and  train  of  cars  that  by  reason  of  the 
negligent  and  improper  conduct  of  the  defendant  by  its  said 
servants  *  the  said  motor  car  then  and  there  struck  against  and 
with  great  force  collided  with  and  against  the  said  carriage, 
and  did  by  such  force  then  and  there  crush  and  ruin  said 
carriage  of  the  plaintiff,  and  the  said  carriage  became  of  no- 
value  to  the  plaintiff,  and  thereby,  by  said  violent  collision,  the 
said  plaintiff  was  then  and  there  thrown  out  of  said  carriage 
with  great  force  upon  the  pavement  of  said  street,  and  was 
then  and  there,  by  means  of  the  several  premises,  greatly  hurt,2 
bruised,  maimed  and  wounded,  and  became  sick,  sore,  and 
thereby  suffered  great  pain,  and  became  and  was  permanently 
injured,  and  was  obliged  to,  and  did,  pay  out  large  sums  of 
money  in  endeavoring  to  be  cured,  and  thereby,  by  means  of 
the  premises,  has  been  prevented  from  attending  to  his  ordi- 
nary business  for  a  long  space  of  time,  to  wit,  hitherto.  Where- 
fore the  plaintiff  says  he  has  been  injured  and  has  sustained 

damage  in  the  sum  of  $ ;  and  therefore  he  brings  suit. 

§  95.  The  order  and  manner  of  pleading. —  The  subject  of 
proceeding  by  bill  being  now  sufficiently  discussed,  it  is  time 
to  resume  the  consideration  of  the  manner  of  pleading?  And 
it  is  to  be  understood  that  what  follows  is  equally  applicable  to 
an  action  by  original  [writ]  and  by  bill;  for,  from  the  period  of 
the  bill  or  declaration,  the  subsequent  course  of  the  suit  is  the 
same  in  either  method  of  proceeding,  some  slight  and  occa- 
sional variations  of  form  only  excepted. 

1  This  declaration  was  demurred  to  have  been  barred  by  limitation.  Swift 

specially  because  it  did  not  point  out  &  Co.  v.  Foster,  163  111.  50. 

"  wherein  the  negligence  complained  2  The  precedent  in  Chitty  combines 

of  consisted,"  but  the  demurrer  was  in  one  count  the  hurt  and  damage  to 

overruled,  and  a  judgment  on  de-  the  plaintiff  with  the  damage  to  the 

murrer  was  sustained,  citing  J.  M.  &  carriage;  and  under  the  idea  that 

I.  Ry.  Co.  v.  Dunlap,  29  Ind.  426,  and  the   cause    of  action    is   the   duty 

other  precedents.    A  declaration  on  violated  and  the  acts  of  the  defend- 

'  the  case  to  recover  for  personal  in-  ant  violating  it,  the  consequences 

juries  on  the  ground  of  negligence  are  but  damage  and  there  would  be 

may  charge  the  negligence  in  dif-  but  one  cause  of  action;  but  if  as  in 

ferent  ways  and  in  separate  counts  King  v.  C.,  M.  &  St.  P.  Ry.  Co.  (Minn.), 

to  meet  the  evidence,  without  being  50  L.  R.  A.  161,  the  cause  of  action  is 

objectionable  as  containing  different  the  harm  done,  the  count  would  be 

causes  of  action,  and  such  a  count  double. 

may  be  added  by  amendment  after  3  Stephen  takes  frequent  occasion 

the  period  when  a  like  cause  would  to  bring  out  that  his  chief  idea  is  not 

what  to  plead  but  how  to  plead. 


§  90.]  PROCEEDINGS    IN    AN    ACTION.  177 

The  plaintiff  having  declared  (i.  e.,  filed  or  delivered  his  dec- 
laration), it  is  for  the  defendant  to  concert  the  manner  of  his 
defense.  For  this  purpose  he  considers  whether,  on  the  face 
of  the  declaration,  and  supposing  the  facts  to  be  true,  the 
plaintiff  appears  to  be  entitled,  in  point  of  law,  to  the  redress 
he  seeks  and  in  the  form  of  action  which  he  has  chosen.  If 
he  appears  to  be  not  so  entitled  in  point  of  law,  and  this  by 
defect  either  in  the  substance  or  the  form  of  the  declaration, 
i.  e.,  as  disclosing  a  case  insufficient  on  the  merits,  or  as  framed 
in  violation  of  any  of  the  rules  of  pleading,  the  defendant  is 
entitled  to  except  to  the  declaration  on  such  ground.  In  so 
doing  he  is  said  to  demur y  and  this  kind  of  objection  is  called 
a  demurrer,  (a) 

Manner  of  questioning  tlie  sufficiency  or  propriety  of  pleadings. 

[A  demurrer  to  any  pleading  except  a  demurrer  is  proper  at 
any  stage  of  the  case.1 

A  motion  to  strike  from  the  files  is  proper  whenever  the  plead- 
ing, though  good  in  form  and  substance,  is  improperly  pleaded, 
out  of  order,  without  leave,  or  where  it  is  wholly  inapplicable 
to  the  situation. 

Motion  to  elect  or  strike  out  one  of  two  pleadings. —  Where  the 
pleadings  are  repugnant,  this  is  also  a  proper  mode  of  dispos- 
ing of  pleadings.] 

§  98.  Classes  of  pleas. —  If  the  defendant  does  not  demur,  his 
only  alternative  method  of  defense  is  to  oppose  or  answer  the 
declaration  by  matter  of  fact.  In  so  doing  he  is  said  ioplead  (c) 
(by  way  of  distinction  from  demurring),  and  the  answer  of  fact 
so  made  is  called  t\iQplea. 

Pleas  are  divided  into  pleas  dilatory  and  peremptory;  and 
this  is  the  most  general  division  to  which  they  are  subject.  (<#)  8 

(a)  See  Appendix,  note  (17). 

(c)  See  Appendix,  note  (18). 

(d)  See  Appendix,  note  (19). 

'Pleading  over  in  bar  after  de-  2 Pitts'  Sons'  Mfg.  Co.  v.  Commer- 

murrer  filed  is  a  waiver  of  the  de-  cial  Nat.  Bank,  121  111.  582.    The  code 

murrer,  and  after  the  overruling  of  courts  do  not  distinguish  between 

it  is  a  waiver  of  the  error  (Mutual  the  different  classes  of  pleas  (Bliss, 

Aid  Soc.  v.  Paine,  122  111.  628);  but  §  345;   Gardner  v.   Clark,  21  N.  Y. 

pleading  over  after  demurrer  over-  399.     Cf.  Gardner  v.  Ogclen,  22  N.  Y. 

ruled  to  a  dilatory  plea  does   not  327),  but  the  judge  in  charging  the 

waive  the  error.  Delahay  v.  Clement,  jury  does.    Id. ;  Pomeroy,  Code  Kem., 

8  Scam.  201.  §  697.    It  allows  them  to  be  set  up 


178 


CAUSES   AND   FORMS    OF   ACTION. 


[§97. 


Subordinate  to  this  is  another  division.  Pleas  are  either  to 
the  jurisdiction  of  the  court,  in  suspension  of  the  action,  in  abate- 
ment of  the  writ,  or  in  "bar  of  the  action;  the  three  first  of  which 
belong  to  the  dilatory  class,  the  last  is  of  the  peremptory 
kind,  (e) 

§  97.  Pleas  must  be  pleaded  in  due  order,  (r) —  The  order 
of  pleading,  as  established  at  the  present  day,  is  as  follows:1 

Dilatory  pleas  — 

1.  To  the  jurisdiction  of  the  court. 

2.  To  the  disability  of  the  person  J  L  Of  Plaintiff- 

12.  Of  defendant. 

3.  To  the  count  or  declaration.2 

1.  For  matter  apparent 

on  the  face  of  it. 

2.  For    matter    dehors 

the  writ. 


4.  To  the, 
writ. 


1.  To  the  form  of 
the  writ. 


2.  To  the  action  of 
the  writ. 


By  way  of  traverse. 
Or   in   confession  and 

avoidance. 

Peremptory  pleas. —  To  the  action  itself,  in  bar  thereof,  (s) a 
In  this  order  the  defendant  may  plead  all  these  kinds  of  plea 
successively.  Thus,  he  may  first  plead  to  the  jurisdiction,  and, 
upon  demurrer  and  judgment  of  respondeat  ouster  thereon,  (£) 
may  resort  to  a  plea  to  the  disability  of  the  person ;  and  so  to 
the  end  of  the  series. 

But  he  cannot  plead  more  than  one  plea  of  the  same  kind 
or  degree.  Thus,  he  cannot  offer  two  successive  pleas  to  the 
jurisdiction,  or  two  to  the  disability  of  the  person,  (u) 

(e)  See  Appendix,  note  (20). 

(r)  Co.  Litt.  803  a;  Longueville  v.  Thistleworth,  Lord  Bay.  970. 

(s)  Com.  Dig.,  Abatement  (0.);  1  Chitty,  425.    See  Appendix,  note  (78). 

(t)  As  to  this  judgment,  vide  supra,  pp.  237,  338. 

(u)  Com.  Dig.,  Abatement  (L  8);  Bac.  Ab.,  Abatement  (O.). 


in  one  document  called  an  answer. 
Fordyce  v.  Hathorn,  57  Mo.  120.  But 
this  is  not  so  in  Indiana  by  statute. 
Dwiggins  v.  Clark,  94  Ind.  49.  Matter 
in  abatement  and  matter  in  bar  may 
be  united  in  the  same  answer.  Chris- 
tian v.  Williams,  111  Mo.  429. 

1  It  will  be  observed  that  the 
change  in  the  nature  of  the  first  pro- 
cess or  original  writ  is  followed  with 


a  change  in  the  nature  of  the  subse- 
quent proceedings.  And,  as  will  be 
shown,  some  of  this  matter  is  now 
obsolete;  but  the  time  has  not  yet 
come  when  a  fair  comprehension  of  it 
is  wholly  useless,  even  in  code  states. 

2  Practically  obsolete. 

3  See  Rex  v.  Gibson,  8  East,  107, 1 
Lead.  Cr.  Cas.  272;  Gould's  Plead., 
ch.  5,  §§  1-a 


§  98.]  PROCEEDINGS   IN   AN   ACTION.  179 

So  he  cannot  vary  the  order ;  for,  by  a  plea  of  any  of  these 
kinds,  he  is  taken  to  waive  or  renounce  all  pleas  of  a  kind  prior 
in  the  series.1 

And  if  issue  in  fact  be  taken  upon  any  plea,  though  of  the 
dilatory  class  only,  the  judgment  on  such  issue  (as  elsewhere 
explained)  either  terminates  or  (in  case  of  a  plea  of  suspension) 
suspends  the  action;  (x)  so  that  he  is  not  at  liberty,  in  that  case, 
to  resort  to  any  other  kind  of  plea. 

§  98.  A  plea  to  the  jurisdiction  is  one  by  which  the  de- 
fendant excepts  to  the  jurisdiction  of  the  court  to  entertain  the 
action.2  The  following  is  an  example: 

PLEA   TO   THE   JURISDICTION. 

In  an  action  of  ejectment  for  lands  situate  within  a  county  palatine. 

In  the  King's  Bench. 

Term,  in  the year  of  the  reign 

of  King  George  the  Fourth. 
C.  D. ) 
ats    > 
A.  B.  ) 

And  the  said  C.  D.,  in  his  proper  person,  comes  and  defends 
the  force  and  injury,  and  says  that  the  said  county  of  Chester 
is,  and  from  time  whereof  the  memory  of  man  is  not  to  the 

(a;)  Vide  post,  pp.  238,  239. 

1Burchard  v.  Record  (Tex.),  17  S.  contrary  appears;  but  in  suits  before 
W.  R.  241;  Baltimore  &  O.  R.  Co.  v.  the  United  States  courts  jurisdiction 
Harris,  12  WalL  65.  While  the  codes  must  be  shown.  Dred  Scott  v.  San- 
do  not  prescribe  the  common-law  ford,  19  How.  393,  Curtis,  J.,  dissent- 
order  of  filing  pleas,  still  the  defend-  ing. 

ant  cannot  lie  by  and  make  one  de-  Jurisdiction  is  said  to  be  of  three 

fense  and  then  raise  another  which  kinds:  Of  the  subject-matter,  of  the 

belonged  to  a  former  stage  at  com-  person,  and  of  the  thing.    Cooper  v. 

mon  law.    Wells  v.  Patton,  50  Kan.  Reynolds,  10  Wall.  308.    To  this  may 

732;  Douglas  v.  Phoenix  Ins.  Co.,  138  be  added,  or  it  may  be  included  in 

N.  Y.  209.    A  plea  to  the  jurisdiction  the  first,  jurisdiction  of  the  process 

after  a  demurrer  and  general  denial  or  particular  remedy.     Grunion  v. 

is  too  late.    Meyer  v.  Sunol  (Tex.),  21  Raymond,  1  Conn.  40, 6  Am.  Dec.  200. 

S.  W.  R.  995.  It  is  discretionary  with  note;  Gurney  v.  Tufts,  37  Me.  133. 

the  court  to  allow  pleas  out  of  order.  Consent  cannot  give  a  court  juris- 

Mex.  Cent.  Ry.  Co.  v.  Pinkney,  149  diction  of  the  subject-matter  of  an 

U.  S.  194.     See  Phillips'  Code  PL,  action,  but  it  may  of  parties.   Brady 

p.  149.  v.  Richardson,  18  Ind.  1;  Cooper  v. 

2  Courts  of  general  jurisdiction  are  Reynolds,  10  Wall.  308. 

presumed  to  have  jurisdiction  of  the  As  a  general  rule,  want  of  jurisdic- 

subject-matter  of  a  cause  unless  the  tion  of  the  subject-matter  may  be 


180 


CAUSES   AND   FOKMS   OF   ACTION. 


[§  99. 


contrary  hath  been,  a  county  palatine ;  and  there  now  are  and 
for  all  the  time  aforesaid  liave  been  justices  there;  and  that 
all  and  singular  pleas  for  the  recovery  of  manors,  messuages 
and  tenements,  lying  and  being  within  the  said  county,  have 
been  for  all  the  time  aforesaid,  and  still  are,  pleaded  and 
pleadable  within  the  said  county  of  Chester,  before  the  jus- 
tices there  for  the  time  being,  and  not  here  in  the  court  of  our 
lord  the  king,  before  the  king  himself.  And  this  he  is  ready 
to  verify.  Wherefore,  since  the  plea  aforesaid  is  brought  for 
recovery  of  the  possession  of  the  manors,  messuages,  lands  and 
hereditaments  aforesaid,  within  the  said  county  palatine,  the 
said  C.  D.  prays  judgment  if  the  court  of  our  lord  the  king 
here  will  or  ought  to  have  farther  cognizance  of  the  plea  afore- 
said. (/) 

§  99.  A  plea  in  suspension  of  the  action  is  one  which  shows 
some  ground  for  not  proceeding  in  the  suit  at  the  present 
period,  and  prays  that  the  pleading  may  be  stayed  until  that 
ground  be  removed.  The  number  of  these  pleas  is  small. 
Among  them  is  that  which  is  founded  on  the  non-age  of  one 
of  the  parties,  and  is  termed  parol  demurrer,  (g) l  Its  form  is 
as  follows: 


(/)  1  Went.  49. 

(g)  See  Appendix,  note  (21). 

taken  advantage  of  at  any  time  it  ap- 
pears during  the  progress  of  the  suit. 
Black's  Ex'rs  v.  Black's  Ex'rs,  34  Pa. 
St,  354.  It  is  said  where  the  defend- 
ant pleads  to  the  merits  in  the  first 
instance,  without  insisting  upon  the 
want  of  jurisdiction,  that  the  objec- 
tion is  waived.  Answer  after  objec- 
tion made  and  overruled  is  not  a 
waiver  of  the  objection.  Harkness 
v.  Hyde,  98  U.  S.  476;  So.  Pac.  R.  Co. 
v.  Denton,  146  U.  S.  202. 

Pleas  of  this  description,  says 
Chitty,  though  in  effect  they  abate 
the  writ,  yet  differ  from  pleas  in 
abatement,  principally  in  three 
points,  viz.:  that  they  must  be 
pleaded  in  person;  that  only  half 
defense  should  be  made,  and  that 
they  should  conclude  si  curia  cog- 
noscere  velit  (whether  the  court 
should  take  cognizance),  and  not 
quod  billa  cassetur  (that  the  bill  may 
be  quashed).  1  Chitty,  441. 

In  United  States  courts,  where  the 


citizenship  necessary  to  give  juris- 
diction appears  on  the  face  of  the 
record,  evidence  to  contradict  it  can 
be  admitted  only  under  plea  in  abate- 
ment in  the  nature  of  a  plea  to  the 
jurisdiction.  Farmington  v.  Pills- 
bury,  114  U.  S.  138;  Hartog  v.  Mem- 
ory, 116  id.  588. 

Under  the  Washington  code,  if 
want  of  jurisdiction  does  not  appear 
on  face  of  complaint  the  defect  may 
be  pleaded  in  the  answer.  The  de- 
fendant may  demur  if  the  defect  ap- 
pears upon  the  face  of  the  complaint. 
Plea  in  abatement  is  unnecessary  be- 
fore answering  to  the  merits.  Greene 
v.  Tacoma,  53  Fed.  R.  562. 

A  plea  to  the  jurisdiction  must 
show  that  there  is  another  court  in 
the  state  that  has  jurisdiction.  Fain 
v.  Crawford,  91  Ga.  30;  Eidling  v. 
Stewart,  7^  id.  539. 

1  This  paragraph  is  cited  in  Chitty's 
PL  (14th  Am.  ed.)  447.  He  treats  the 
subject  as  included  in  abatement,  in- 


§  100.]  PROCEEDINGS    IN   AN   ACTION. 

PAKOL   DEMUEEER. 

In  debt,  by  an  heir  sued  on  the  bond  of  his  ancestor. 
In  the  King's  Bench. 


Term,  in  the year  of  the  reign 

of  King  George  the  Fourth. 
O.B.) 
ats    V 
A.  B. ) 

And  the  said  C.  D.,  by ,  his  attorney,  who  is  ad- 
mitted by  the  court  of  our  said  lord  the  king  here  as  guardian 
of  the  said  C.  D.,  to  defend  for  the  said  0.  D.,  who  is  an  in- 
fant under  the  age  of  twenty-one  years,  comes  and  defends 
the  wrong  and  injury,  when,  etc.,  and  saith  that  he,  the  said 
C.  D.,  is  within  the  age  of  twenty-one  years,  to  wit,  of  the 
age  of years,  to  wit,  at aforesaid,  in  the  county  afore- 
said. And  this  he  is  ready  to  verify.  Wherefore  he  does  not 
conceive  that  during  his  minority  he  ought  to  answer  the  said 
A.  B.  in  his  said  plea.  And  he  prays  that  the  parol  may  demur  (K) 
until  the  full  age  of  him,  the  said  C.  D.  (i) 

§  100.  A  plea  in  abatement  of  the  writ  is  one  which  shows 
some  ground  for  abating  or  quashing  the  original  writ,  and 
makes  prayer  to  that  effect,  (k) l 

(h)  Parol  is  the  French  word  for  loquela,  which  was  the  most  ancient  appellation  of  the 
pleading  (vide  supra,  p.  146) ;  demur  is  from  demorrer,  to  stay.  That  the  parol  may  demur 
means,  therefore,  that  the  pleading  may  be  stayed. 

(9  2  Chitty,  472;  Plaskett  v.  Beeby,  4  East,  485. 

(fc)  See  Appendix,  note  (22). 

stancing  only  the  case  of  injury  in  to  abate  the  writ,  or  defeat  the  pro- 
real  actions,  and  noticing  that  this  cess  entirely,  but  to  suspend  it;  and 
parol  demurrer  is  abolished  in  Eng-  the  plea  is  defective  when  it  con- 
land.  The  distinction  between  pure  eludes  either  in  bar  or  in  abatement 
pleas  in  abatement  of  the  suit  and  in  of  the  writ.  The  former  is  a  prayer 
bar  of  the  action  for  some  disability  whether  the  plaintiff  shall  be  further 
which  could  not  be  removed,  and  a  answered,  and  the  judgment  to  be 
plea  in  suspension  of  the  suit,  which  entered  upon  it,  when  it  shall  be  con- 
merely  causes  the  suit  to  remain  in  fessed  or  maintained,  is  that  the  writ 
statu  quo  until  the  disability  is  re-  aforesaid  remain  without  day,  donee 
moved,  is  clear,  and  has  been  often  terrce  fuerint  communes,  until  the 
applied  to  temporary  disability  by  intercourse  or  the  peace  of  the  two 
alienage,  etc.  Faulkland  v.  Hanson,  countries  shall  be  restored.  Where 
12  Mo.  App.  400;  Le  Brett  v.  Papil-  the  effect  of  a  plea  is  a  temporary 
Ion,  4  East,  502 ;  Hutchinson  v.  Brook,  disability  of  the  plaintiff,  and  nothing 
11  Mass.  119.  In  the  last  case  Judge  more,  a  prayer  of  judgment  of  the 
Sewell  says:  "In  time  of  war  the  writ  is  bad." 

plea  of  alien  enemy  is  a  temporary  l  Matter  which  merely  defeats  the 

disability  only,  which  ceases  with  the  present  maintenance  of  the  suit,  but 

war.    It  is  still  called  a  plea  in  abate-  which  does  not  deny  a  right  to  a 

ment,  although  the  effect  of  it  is  not  remedy,is  matter  in  abatement.  Pitts' 


182 


CAUSES   AND    FOKMS    OF   ACTION. 


[§  100. 


The  grounds  for  so  abating  the  writ  are  any  matters  of 
fact  tending  to  impeach  the  correctness  of  that  instrument; 
i.  0.,  to  show  that  it  is  improperly  framed  or  sued  out,  without 
at  the  same  time  tending  to  deny  the  right  of  action  itself. 
Thus,  if  there  be  a  variance  between  the  declaration  and  the 
writ,  this  shows  that  the  writ  was  not  properly  adapted  to  the 
action,  and  is  therefore  a  ground  for  abating  it.  So,  if  the  writ 
appear  to  have  been  sued  out  pending  another  action  already 
brought  for  the  same  cause,1  —  if  it  name  only  one  person  as 


Sons'  Mfg.  Co.  v.  Com.  Nat.  Bank, 
121  111.  582;  Culver  v.  Johnson,  90 
id.  91;  Straight  v.  Hanchett,  23  111. 
App.  584  The  conclusion  of  the 
plea  determines  its  nature.  Pitts' 
Sons'  Mfg.  Co.  v.  Com.  Nat.  Bank, 
supra. 

Any  defect  in  the  writ,  its  service 
or  return,  which  is  apparent  from 
an  inspection  of  the  record,  may  be 
taken  advantage  of  by  motion.  But 
where  the  objection  is  founded  upon 
extrinsic  facts,  the  matter  must  be 
pleaded  in  abatement,  so  that  an 
issue  may  be  made  thereon  and  tried, 
if  desired,  by  a  jury,  like  any  other 
issue  of  fact.  Greer  v.  Young,  120 
I1L  184;  Pitts'  Sons'  Mfg.  Co.  v.  Com. 
Nat.  Bank,  121  id.  582. 

Plea  in  abatement,  if  it  prevails, 
ends  the  suit.  Kerr  v.  Willetts,  48 
N.  J.  L.  78. 

Pleas  in  abatement  being  of  a  dila- 
tory character  are  not  favored.  But 
a  plea  setting  up  that  there  is  an- 
other suit  pending  for  the  same  cause 
of  action  has  a  more  favorable  posi- 
tion in  court  than  one  merely  dila- 
tory. Still  such  a  plea  must  not,  in 
its  frame,  omit  any  of  the  essential 
requirements  of  law.  Buckles  v. 
Harlan,  54  I1L  361. 

If  there  is  the  least  inaccuracy  in 
this  plea  it  cannot  be  supported. 
Lord  Kenyon  in  Roberts  v.  Moore,  5 
T.  R.  488.  The  plea  must  be  so  com- 
plete and  certain  that  the  court  can 
see  that  no  answer  can  be  made  to 
its  allegations  but  a  denial  of  their 
truth  or  their  sufficiency.  1  Chitty, 


PL  445;  Gould  v.  Smith,  30  Conn.  90. 
No  implication  can  aid  it  Mr.  Justice 
McLean  in  Scott  v.  Sanford,  19  How. 
393.  Where  in  the  commencement 
of  the  plea  judgment  was  prayed  of 
the  writ  and  declaration,  and  in  the 
conclusion  of  the  writ  only,  it  was 
held  that  this  did  not  vitiate.it,  being 
matter  of  form.  Buckles  v.  Harlan, 
54  III  361.  Concerning  pleas  in 
abatement,  see  3  Cooley's  Black.  (3d 
ed.)  note. 

1  That  there  is  another  suit  pend- 
ing for  the  same  cause  must  be 
pleaded  in  abatement.  Moore  v. 
Spiegel,  143  Mass.  413.  Pendency  of 
another  suit  in  federal  courts  in  the 
same  territorial  jurisdiction  will 
abate.  Smith  v.  Atlantic  Mut.  Ins. 
Co.,  22  N.  H.  21.  Pendency  of  a  suit 
for  the  same  cause  by  the  same 
plaintiff  against  the  same  defendant 
in  another  territorial  jurisdiction 
cannot  be  pleaded  in  abatement. 
Walsh  v.  Durkin,  12  Johns.  99; 
Humphries  v.  Dawson,  38  Ala.  199; 
Smith  v.  Lathrop,  44  Pa.  St.  326; 
Stanton  v.  Embrey,  93  U.  S.  548;  Kerr 
v.  Willetts,  48  N.  J.  L.  78;  Hatch  v. 
Spofford,  22  Conn.  485.  Nor  can  a 
suit  be  abated  by  a  plea  that  an  an- 
other action  was  afterwards  com- 
menced. Nicholl  v.  Mason,  21  Wend. 
339.  Nor  will  a  writ  in  personam  at 
common  law  be  abated  by  the  pend- 
ency of  a  prior  suit  in  rem  in  ad- 
miralty. Granger  v.  Circuit  Judge, 
27  Mich.  406. 

A  plea  in  abatement  is  the  proper 
way  to  take  advantage  of  a  non» 


§  loo.] 


PROCEEDINGS    IN   AN    ACTION. 


183 


defendant  when  it  should  have  named  several, —  or  if  it  appear 
to  have  been  defaced  in  a  material  part, —  it  is  for  any  of  these 
reasons  abatable.  (1) l 

Pleas  in  abatement  relate  either  — 

To  the  person  of  the  plaintiff, 

To  the  person  of  the  defendant, 

To  the  count  or  declaration, —  or 

To  the  writ,  (m) 

A  plea  in  abatement  to  the  person  of  the  plaintiff  or  de- 
fendant is  such  as  shows  some  personal  disability  in  one  of 
these  parties  to  sue  or  be  sued ;  as, 2  that  the  plaintiff  is  an 

(Q  The  different  grounds  or  subjects  of  pleas  in  abatement  will  be  found  enumerated 
Com.  Dig.,  Abatement  (E.)— (H.  56). 

(m)  1  Chitty,  435;  Com.  Dig.,  Abatement,  0. 


joinder  of  parties  in  actions  ex  con- 
tractu,  unless  the  fact  already  ap- 
pears in  the  record.  The  reason  is 
because  it  is  unnecessary  to  plead  a 
fact  already  appearing  of  record. 
Ante,  p.  61.  A  good  plea  in  abate- 
ment must  aver  that  the  person  not 
joined  is  alive  and  within  the  juris- 
diction of  the  court.  Palmer  v.  Field, 
59  N.  Y.  S.  R,  180;  Goodhue  v.  Luce, 
83  Me.  223. 

lln  New  Hampshire  no  writ  or 
declaration  shall  be  abated,  quashed 
or  reversed  for  any  error  or  mistake, 
where  the  person  or  case  may  be 
rightly  understood  by  the  court 
Adams  v.  Wiggin,  42  N.  EL  553. 

2  A  suit  may  be  abated  on  account 
of  the  infancy  of  the  plaintiff. 
Schemerhorn  v.  Jenkins,  7  Johns. 
873. 

The  marriage  of  a  feme  sole  pend- 
ing suit  abates  the  action,  and  must 
be  pleaded  before  a  plea  in  bar.  But 
if  the  marriage  does  not  take  place 
till  after  the  plea  in  bar,  it  must  be 
pleaded  before  the  next  continuance. 
Swan  v.  Wilkinson,  14  Mass.  295; 
Chirac  v.  Reinicker,  11  Wheat.  280; 
Wilson  v.  Hamilton,  4  S.  &  R.  238. 

That  one  claiming  to  be  the  guard- 
ian of  the  plaintiff  is  not  authorized 
to  maintain  the  action  for  the  plaint- 
iff may  be  pleaded  in  abatement. 


Conkey  v.  Kingman,  24  Pick.  115. 
And  see  as  to  executors,  Kane  v. 
Paul,  14  Pet.  33;  Childress  v.  Emory, 
8  Wheat  642. 

That  the  plaintiff  is  a  fictitious 
person  may  be  taken  advantage  of 
by  abatement.  Doe  v.  Penfield,  19 
Johns.  308. 

It  is  sometimes  said  that  the  fact 
that  there  is  no  such  person  can  be 
taken  advantage  of  only  by  plea  in 
abatement.  See  1  Chitt  PI.  (Perkins* 
14th  Am.  ed.)  449,  note  2.  But  this  is 
erroneous.  See  Boston  Type  Foun- 
dry v.  Spooner,  5  Vt  93. 

Where  it  is  discovered  that  the 
plaintiff  is  a  fictitious  person  or  a 
supposed  corporation  which  could 
have  no  existence,  or  a  thing  that 
could  not  have  or  owe  rights,  the 
case  must  be  dismissed.  Mexico  Mill 
Co.  v.  Yellow  Jacket  Co.,  4  Nev.  40, 
97  Am.  Dec.  510;  Detroit  Schuetzen 
Bund  v.  Agitations  Verein,  44  Mich. 
313;  Alvarez  v.  Brennan,  7  Cal.  503, 
68  Am.  Dec.  274;  The  Steamboat 
Burns,  9  Wall.  237.  Where  the  en- 
tity may  sue,  but  has  used  an  im- 
proper name,  or  its  own  name  when 
it  should  sue  by  trustees,  etc.,  ad- 
vantage must  be  taken  by  plea  in 
abatement  or  nul  tiel  corporation  in 
the  lower  courts.  Ada  St  M.  E. 
Church  v.  Garnsey,  66  111.  132. 


CAUSES    AND   FOKMS    OF   ACTION.  [§  100. 

alien  enemy.1  "With  respect  to  these  pleas  to  the  person,  it  is 
to  be  observed  that  they  do  not  fall  strictly  within  the  defini- 
tion of  pleas  in  abatement,  as  above  given;  for  they  do  not 
pray  "  that  the  writ  be  quashed,"  but  pray  judgment  "  if  the 
plaintiff  ought  to  be  answered."  However,  as  such  pleas  offer 
an  objection  of  form  rather  than  substance,  and  do  not  deny 
the  right  of  action  itself,  they  are  considered  as  in  the  nature 
of  pleas  in  abatement,  and  classed  among  them,  (n) 2 

A  plea  in  abatement  to  the  count  or  declaration  is  such  as  is 
founded  on  some  objection  applying  immediately  to  the  dec- 
laration, and  only  by  consequence  affecting  the  writ.  The 
only  frequent  case  in  which  this  kind  of  plea  has  occurred  is 
where  the  objection  is  that  of  a  variance  in  the  declaration 
from  the  writ,  which  was  always  a  fatal  fault,  (o)3  Even  in 
this  case,  however,  the  plea  is  now  out  of  use,  in  consequence 
of  a  change  of  practice  relative  to  the  original  writ  that  will 
be  presently  explained.4 

A  plea  in  abatement  to  the  writ  is  such  as  is  founded  on  some 
objection  that  applies  to  the  writ  itself;  for  example,  that  in 
an  action  on  a  joint  contract  it  does  not  name  as  defendants 
all  the  joint  contractors,  but  omits  one  or  more  of  them.  Pleas 
of  this  latter  kind  have  been  very  anciently  divided  into  such 
as  relate  to  the  form  of  the  writ  and  such  as  relate  to  the  ac- 
tion of  the  writ;  and  those  relating  to  Us  form  have  been  again 
subdivided  into  such  as  are  founded  on  objections  apparent  on 

(.n)  See  Appendix,  note  (23). 

(o)  There  were,  however,  other  instances  in  which  this  kind  of  plea  was  used.  See  Co. 
Litt.  803  b,  where  it  is  said  that  "  any  imperfection  in  the  count  doth  abate  the  writ."  See 
also  Com.  Dig.,  Abatement,  G.  7,  G.  8. 

1  It  is  a  general  rule  that  a  plea  in  v.  Brock,.  11  Mass.  119.  See  Suspen- 
abatement  must  give  the  plaintiff  a  sion  of  Action,  and  note,  ante. 
better  writ.  American  Exp.  Co.  v.  2  Pleas  in  abatement  arising  from 
Haggard,  37  111.  465.  But  this  does  privilege  of  person  ought  to  be 
not  apply  to  such  cases  as  those  of  classed  under  pleas  to  the  jurisdio 
outlawry,  attainder,  alien  enemy,  tion.  1  Chitty,  PI.  478;  United  States 
etc.,  where  the  right  of  action  is  sus-  v.  Benner,  Bald.  240;  Drake  v.  Drake, 
pended  on  account  of  the  disability  83  111.  526.  But  such  plea  will  not 
of  plaintiff  to  sue,  and  where  he  can-  be  adjudged  bad  on  demurrer  be- 
not  have  a  better  writ.  Boston  Type  cause  it  prays  judgment  on  the  writ. 
Foundry  v.  Spooner,  5  Vt.  93.  The  Drake  v.  Drake,  supra. 
plea  of  alien  enemy  is  a  temporary  3See  Duvall  v.  Craig,  2  Wheat  45; 
disability  only;  and  its  effect  is  not  Chirac  v.  Reinicker,  11  Wheat.  280; 
to  defeat  the  action,  but  to  suspend  McKenna  v.  Fisk,  1  How.  241. 
it.  A  prayer  of  judgment  on  the  4  This  plea  is  practically  obsolete, 
writ  is  therefore  bad.  Hutchinson  1  Chitty,  PL  *466. 


§  100.] 


PKOCEEDINGS   IN   AN   ACTION. 


185 


the  writ  itself \  and  such  as  are  founded  on  matter  extrane- 
ous, (j)} l 
The  following  are  examples  of  pleas  in  abatement: 


PLEA   IN  ABATEMENT   OF   THE   WRIT. 


To  the  person  of  the  plaintiff. 


In  the  King's  Bench. 


Term,  in  the 


of  King  George  the  Fourth. 


(In  debt.) 
year  of  the  reign 


0.  D.  ats  A.  B. 

And  the  said  0.  D.,  by ,  his  attorney,  comes  and 

defends  the  wrong  and  injury,  when,  etc.,  and  says  that  the 
said  A.  B.  ought  not  to  be  answered  to  his  writ  and  declara- 
tion aforesaid,  because,  he  says,  that  the  said  A.  B.  is  an  alien 
born,  to  wit,  at  Calais,  in  the  kingdom  of  France,  in  parts  be- 
yond the  seas  under  the  allegiance  of  the  king  of  France,  an 
enemy  of  our  lord  the  now  king,  born  of  father  and  mother 

(p)  1  Chitty,  435;  Com.  Dig.,  Abatement,  C.  These  divisions  of  pleas  in  abatement  to  the 
writ  seem  to  be  more  subtle  than  useful,  aud  do  not,  in  modern  practice,  often  come  under 
consideration. 


1  Pleas  to  the  form  of  the  writ  are 
mostly  for  matter  dehors,  such  as 
misnomer  of  plaintiff  or  defendant. 
See  Reid  v.  Lord,  4  Johns.  118.  Pleas 
of  misnomer  were  abolished  in  Eng- 
land by  3  and  4  William  IV.,  chapter 
42,  section  11.  Misnomer  of  plaint- 
iff, even  in  case  of  a  corporation,  can 
be  taken  advantage  of  by  plea  in 
abatement  only.  Mayor  of  Stafford 
v.  Bolton,  1  Bos.  &  Pul.  40;  Medway 
Manufactory  v.  Adams,  10  Mass.  360. 
A  plea  in  abatement  was  sustained 
to  a  declaration  in  which  a  name 
was  stated  as  "  Clendenard,"  when 
the  right  name  was  "Clendenin." 
Gates  v.  Clendenard,  87  Ala.  734. 

The  word  junior  not  being  a  part 
of  the  name  may  be  added  or  omitted. 
See  Headley  v.  Shaw,  39  III  354; 
Kincaid  v.  Howe,  10  Mass.  203;  State 
v.  Grant,  21  Me.  171;  Jameson  v. 
Isaacs,  12  Vt.  611. 

The  middle  name  was  by  common 
law  no  part  of  a  man's  name,  and 
consequently  the  omission  of  the 
middle  name  or  initial  was  imma- 
terial. See  Franklin  v.  Talmadge,  5 
Johns.  84;  Schofield  v.  Jennings,  68 


Ind.  232;  Re  Snook,  2  Hilt.  568;  State 
v.  Martin,  10  Mo.  301;  Hart  v.  Lind- 
sey,  17  N.  H.  235,  43  Am.  Dec.  597; 
Bletch  v.  Johnson,  40  III  116.  But 
in  Massachusetts  the  middle  name  or 
initial  must  be  regarded.  See  Parker 
v.  Parker,  146  Mass.  320.  See  also 
King  v.  Hutchins,  28  N.  H.  580. 

The  omission  of  the  Christian  name 
or  merely  giving  the  initials  is  abat- 
able. Peden  v.  King,  30  Ind.  181; 
Morris  v.  Graves,  4  Strobh.  L.  32.  A 
name  is  the  title  used  for  identifica- 
tion, and  the  intent  of  its  require- 
ment is  certainty  of  such  identifica- 
tion. Laflin  &  Rand  Powder  Co.  v. 
Steytler,  146  Pa.  St.  434,  14  L.  R.  A. 
690. 

The  doctrine  of  idem  sonans  ap- 
plies to  words  the  pronunciation  of 
which,  in  conversation,  appears  to  be 
identical  The  courts  are  especially 
liberal  in  the  case  of  foreign  names. 
See  Barnes  v.  People,  18  111.  52;  Mil- 
lett  v.  Blake,  81  Me.  531;  Belton  v. 
Fisher,  44  111.  32;  Chiniquy  v.  Bishop 
of  Chicago,  41  id.  148;  Stevens  v. 
Stebbins,  4  id.  25. 


ISO  CAUSES    AND   FORMS    OF   ACTION.  [§  101. 

adhering  to  the  said  enemy;  and  that  the  said  A.  B.  entered 
this  kingdom  without  the  safe  conduct  of  our  said  lord  the 
king.  And  this  the  said  0.  D.  is  ready  to  verify.  Wherefore 
he  prays  judgment  if  the  said  A.  B.  ought  to  be  answered  to 
his  writ  and  declaration  aforesaid,  (^)  etc. 

PLEA   IN   ABATEMENT   OF   THE   WEIT. 

To  the  writ  (for  non-joinder). 

In  the  King's  Bench.  (In  assumpsit.} 

Term,  in  the year  of  the  reign 

of  King  George  the  Fourth. 
C.  D.  ate  A.  B. 

And  the  said  0.  D.,  by ,  his  attorney,  comes  and 

defends  the  wrong  and  injury  when,  etc.,  and  prays  judgment 
of  the  said  writ  and  declaration,  because  he  says  that  the  said 
several  supposed  promises  and  undertakings  in  the  said  dec- 
laration mentioned  (if  any  such  were  made)  were  made  jointly 

with  one  G.  H.,  who  is  still  living,  to  wit,  at ,  and  not  by 

the  said  C.  D.  alone.  And  this  the  said  C.  D.  is  ready  to  verify. 
"Wherefore,  inasmuch  as  the  said  G.  H.  is  not  named  in  the  said 
writ  together  with  the  said  C.  D.,  he,  the  said  C.  D.,  prays  judg- 
ment of  the  said  writ  and  declaration,  and  that  the  same  may 
be  quashed,  (r) 

The  effect  of  all  pleas  in  abatement,  if  successful,  is  that  the 
particular  action  is  defeated.  But  on  the  other  hand,  the  right 
of  suit  itself  is  not  gone;  and  the  plaintiff,  on  obtaining  a  bet- 
ter form  of  writ,  may  maintain  a  new  action,  if  the  objection 
were  founded  on  matter  of  abatement;  or,  if  the  objection  were 
to  the  disability  of  the  person,  he  may  bring  a  new  action  when, 
that  disability  is  removed. 

§  101.  Oyer  of  the  writ. —  Such  is,  in  its  principle,  the  doc- 
trine of  pleas  in  abatement;  but  the  actual  power  of  using 
these  pleas  has  been  much  abridged,  and  the  whole  law  of 
original  writs  consequently  rendered  of  less  prominent  im- 
portance than  formerly,  by  a  rule  of  practice  laid  down  in 
modern  times.  "With  respect  to  such  pleas  in  abatement  as 
were  founded  on  facts  that  could  only  fie  ascertained  by  ex- 
amination of  the  writ  itself ^  as,  for  example,  variance  between 
the  writ  and  declaration,  or  erasure  of  the  writ,  it  was  al- 
ways held  a  necessary  matter  of  form,  preparatory  to  plead- 
ing them,  to  demand  oyer  of  the  writ,  (s)  that  is,  to  demand 

(3)  Lil.  Ent.  1;  Mod.  Ent.  9;  1  Went.  42,  29. 

(r)  2  Chitty,  415  [ante,  p.  61]. 

(*)  Com.  Dig.,  Pleader,  p.  2;  1  Saund.  318,  n.  3;  Salk.  658. 


I  101.]  PKOCEEDINGS   IN   AN   ACTION.  187 

to  hear  it  read;  which,  in  the  days  of  oral  pleading,  was  com- 
plied with  by  reading  it  aloud  in  open  court,  and,  after  the 
establishment  of  written  pleadings,  by  delivering  a  copy  ol 
the  instrument.  The  court  of  common  pleas,  however,  in  the 

II  and  12  Geo.  II.,  and  the  king's  bench,  in  the  19  Geo.  III.,  (t) 
thought  fit  to  establish  it  as  a  rule,  that  thenceforth  oyer 
should  not  be  granted  of  the  original  writ ;  that  the  indirect 
effect  of  this  has  consequently  been  to  abolish  in  practice  all 
pleas  in  abatement  founded  on  objections  of  the  kind  here 
stated.     But  there  are  pleas  in  abatement  which  do  not  require 
any  examination  of  the  writ  itself.     For  example,  if  in  the  dec- 
laration one  only  of  two  joint  contractors  is  named  defendant, 
that  is  sufficient  to  show  that  the  same  non-joinder  exists  in 
the  writ;  for,  as  a  variance  between  the  writ  and  declaration 
is  a  fault,  (u)  the  defendant  is  entitled  to  assume  that  they 
agree  with  each  other;  and  he  may  consequently,  without 
production  of  the  writ,  plead  this  misjoinder  as  certainly  ex- 
isting in  the  latter  instrument.     So  the  plea  that  the  writ  was 
sued  out  pending  another  action,  or  pleas  to  the  person  of  the 
plaintiff  or  defendant,  require  no  examination  of  the  writ 
itself,  and  there  are  many  others  to  which  the  same  remark 
applies.     In  all  such  cases  no  oyer  is  necessary;  and  therefore 
pleas  of  this  latter  description  may  be,  and  are  in  fact,  still 
pleaded,  notwithstanding  the  rule  of  practice  which  denies 
oyer  of  the  writ. 

In  this  explanation  of  pleas  in  abatement,  the  case  of  a  pro- 
ceeding by  original  writ  has  been  hitherto  exclusively  sup- 
posed ;  the  law  relating  to  these  pleas  having  been  devised  and 
originally  applied  at  a  period  when  proceedings  ~by  bill  were 
either  unknown  or  not  in  common  use,  and  therefore  having  a 
more  immediate  and  strict  reference  to  proceedings  by  orig- 
inal. It  is,  however,  to  be  understood  that  there  are  pleas  in 
abatement  of  the  hill  also,  by  analogy  to  those  in  abatement  of 
the  writ.  In  form  they  differ  from  pleas  in  abatement  of  the 
writ  only  in  praying  judgment  if  the  plaintiff  ought  to  be 
answered  "to  his  bill"  or  "that  the  bill  be  quashed,"  —  in- 
stead of  making  the  like  prayer  with  respect  to  "  writ  and  dec- 
laration" (x) 

(t)  Doug.  227;  1  Saund.  318,  n.  3. 
(u)  Vide  supra,  p.  183. 
(x)  See  Appendix,  note  (24). 


188  CAUSES   AND   FORMS    OF   ACTION.  [§  102. 

§  102.  Pleas  in  bar. —  A  plea  in  ~bar  of  the  action  may  be 
defined  as  one  which  shows  some  ground  for  barring  or  de- 
feating the  action,  and  makes  the  prayer  to  that  effect,  (y)  A  plea 
in  bar  is  therefore  distinguished  from  all  pleas  of  the  dilatory 
class,  as  impugning  the  right  of  action  altogether,  instead  of 
merely  tending  to  divert  the  proceedings  to  another  juris- 
diction, or  suspend  them,  or  abate  the  particular  writ.1  It  is, 
in  short,  a  substantial  and  conclusive  answer  to  the  action,  (z) 
It  follows  from  this  property  that  in  general  it  must  either 
deny  all  or  some  substantial  part  of  the  averments  of  fact  in 
the  declaration;  or,  admitting  them  to  be  true,  allege  new 
facts  which  obviate  or  repel  their  legal  effect.2  In  the  first 
case  the  defendant  is  said,  in  the  language  of  pleading,  to 
traverse  (a)  the  matter  of  the  declaration ;  in  the  latter,  to  con- 
fess and  avoid  it.  Pleas  in  bar  are  consequently  divided  into 
pleas  "by  way  of  traverse,  and  pleas  ~by  way  of  confession  and 
avoidance? 

Of  pleas  in  bar  of  each  of  these  descriptions  the  following 
are  examples: 

PLFA    IN   BAR. 

By  way  of  Traverse. 
In  covenant,  on  indenture  of  lease — For  not  repairing. 

In  the  King's  Bench. 

Term,  in  the year  of  the  reign 

of  King  George  the  Fourth. 
0.  D.  ats  A.  B. 

And  the  said  0.  D.,  by ,  his  attorney,  comes  and 

defends  the  wrong  and  injury  when,  etc.,  and  says  that  the 

(y)  See  Appendix,  note  (25). 

(z)  The  different  grounds  or  subjects  of  pleas  to  bar,  to  each  different  form  of  action, 
will  be  found  enumerated  to  Com.  Dig.,  Pleader,  etc.  (2  A.)  —  (8  0. 19). 
(a)  See  Appendix,  note  (26). 

1  Pleas  in  bar  are  not  to  receive  a  only  the  proper  judgment  prayed 

narrow  and  merely  technical  con-  for  by  the  party;  but  on  a  plea  in 

struction,  and  are  to  be  determined,  bar  the  party  may  have  a  right  judg- 

not  by  a  disjoining  of  their   mem-  ment  upon   a  wrong    prayer.    The 

bers,  or  by  laying  stress  on  what  King  v.    Shakspeare,    10    East,   87; 

may  be  immaterial,  but  according  to  Howies  v.  Lusty,  4  Bing.  428. 

their  entire  subject-matter.    Withers  2  See  Bouvier's  Law  Diet,  tit  Plead- 

v.  Greene,  9  How.  213.  ing. 

In  abatement  the  court  will  give  3  Every  answer,  under  the  code, 


§  103.]  PBOCEEDINGS    IN   AN   ACTION.  189 

said  A.  B.  ought  not  to  have  or  maintain  his  aforesaid  action 
against  him,  the  said  C.  D.,  because  he  says  that  the  windows 
of  the  said  messuage  or  tenement  were  not  in  any  part  thereof 
ruinous,  in  decay  or  out  of  repair,  in  manner  and  form  as  the 
said  A.  B.  hath  above  complained  against  him,  the  said  C.  D. 
And  of  this  he  puts  himself  upon  the  country.  (5) 

PLEA   IN   BAR. 

By  way  of  Confession  and  Avoidance. 

In  a  like  action. 
In  the  King's  Bench. 

Term,  in  the year  of  the  reign 

of  King  George  the  fourth. 
C.  D.  } 
ats    > 
A.B.  ) 

And  the  said  C.  D.,  by ,  his  attorney,  comes  and 

defends  the  wrong  and  injury,  when,  etc.,  and  says  that  the 
said  A.  B.  ought  not  to  have  or  maintain  his  aforesaid  action 
against  him,  the  said  C.  D.,  because  he  says  that  after  the 
said  breach  of  covenant,  and  before  the  commencement  of  this 

suit,  to  wit,  on  the day  of ,  in  the  year  of  our  Lord 

,  at aforesaid,  in  the  county  aforesaid,  the  said  A.  B., 

by  his  certain  deed  of  release,  sealed  with  his  seal,  and  now 
shown  to  the  court  here  (the  date  whereof  is  the  day  and 
year  aforesaid),  did  remise,  release  and  forever  quitclaim  to 
the  said  C.  D.,  his  heirs,  executors  and  administrators,  all  dam- 
ages, cause  and  causes  of  action,  breaches  of  covenant,  debts 
and  demands  whatsoever,  which  then  had  accrued  to  the  said 
A.  B.,  or  which  the  said  A.  B.  then  had  against  the  said  C.  D. ; 
as  by  the  said  deed  of  release,  reference  being  thereto  had,  will 
fully  appear.  And  this  the  said  C.  D.  is  ready  to  verify. 
Wherefore  he  prays  judgment  if  the  said  A.  B.  ought  to  have 
or  maintain  his  aforesaid  action  against  him. 

§  103.  Demurrer. —  A  demurrer  (from  the  Latin  demorari, 
or  French  demorrer,  to  wait,  or  stay)  imports,  according  to  its 
etymology,  that  the  objecting  party  will  not  proceed  with  the 
pleading,  because  no  sufficient  statement  has  been  made  on  the 
other  side;  but  will  wait  the  judgment  of  the  court  whether 
he  is  bound  to  answer.1 

(6)  See  the  declaration,  supra,  p.  162. 

should  be  as  full  and  complete  as  a  1  Haiton  v.  Jeffreys,  10  Mod.  280, 

special  plea  was  required  to  be  at  Ames'  Cases,  6;  Leaves  v.  Bernard,  5 

common  law.     Ayrault  v.  Chamber-  Mod.  132;  Davies  v.  Gibson,  2  Ark.  117; 

lain,  33  Barb.  229.  Tyler  v.   Hand,  7  How.   573.    This 
13 


190  CAUSES   AND    FOEMS   OF   ACTION.  [§  103. 

The  form  of  a  demurrer  to  a  declaration  will  appear  by  the 
following  examples: 

GENERAL  DEMURRER. 

To  the  Declaration. 

For  matter  of  substance. 

(In  debt.) 
In  the  King's  Bench. 

Term,  in  the year  of  the  reign 

of  King  George  the  Fourth. 
C.  D.    ) 
ats(5)  V 
A.  B.     ) 

And  the  said  C.  D.,  by ,  his  attorney,  comes  and 

defends  the  wrong  and  injury,  when,  etc.,  and  says  that  the 
said  declaration  and  the  matters  therein  contained,  in  manner 
and  form  as  the  same  are  above  stated  and  set  forth,  are  not 
sufficient  in  law  for  the  said  A.  B.  to  have  or  maintain  his 
aforesaid  action  against  him,  the  said  0.  D.;  and  that  he,  the 
said  C.  D.,  is  not  bound  by  the  law  of  the  land  to  answer  the 
same.  And  this  he  is  ready  to  verify.  Wherefore,  for  want 
of  a  sufficient  declaration  in  this  beh'alf,  the  said  C.  D.  prays 
judgment,  and  that  the  said  A.  B.  may  be  barred  from  having 
or  maintaining  his  aforesaid  action  against  him,  etc. 


SPECIAL    DEMURRER. 

To  the  Declaration. 

For  matter  of  form. 

(In  debt.) 
In  the  King's  Bench. 

Term,  in  the year  of  the  reign 

of  King  George  the  Fourth. 
C.D. 
ats 
A.B. 

And  the  said  C.  D.,  by ,  his  attorney,  comes  and  de- 
fends the  wrong  and  injury,  when,  etc.,  and  says  that  the  said 

(6)  I.e.,  at  suit  of. 

statement  in  the  text  is  generally    Law  Diet;  Bouvier's  Law  Diet.,  tit. 

cited  by  courts,  text- writers  and  com-    Demurrer. 

pilers  of  dictionaries.  See  Anderson's       By  proceeding  with  the  trial  on 


§  104:.]  PROCEEDINGS    IN   AN   ACTION.  191 

declaration  and  the  matters  therein  contained,  in  manner  and 
form  as  the  same  are  above  stated  and  set  forth,  are  not  suffi- 
cient in  law  for  the  said  A.  B.  to  have  or  maintain  his  afore- 
said action  against  the  said  0.  D.,  and  that  he,  the  said  C.  D., 
is  not  bound  Toy  the  law  of  the  land  to  answer  the  same.  And 
this  he  is  ready  to  verify.  Wherefore,  for  want  of  a  sufficient 
declaration  in  this  behalf,  the  said  C.  D.  prays  judgment,  and 
that  the  said  A.  B.  may  be  barred  from  having  or  maintaining 
his  aforesaid  action  against  him,  etc.  And  the  said  C.  D.,  [ac- 
cording to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided], states  and  shows  to  the  court  here  the  following  [special] 
causes  of  demurrer  to  the  said  declaration:  that  is  to  say,  that 
no  day  or  time  is  alleged  in  the  said  declaration  at  which  the 
said  causes  of  action  or  any  of  them  are  supposed  to  have  ac- 
crued. [That  the  declaration  is  double  in  this,  that  is  to  say.] 
And  also  that  the  said  declaration  is  in  other  respects  uncertain, 
informal  and  insufficient. 

§  104.  Arrival  at  issue. —  1.  By  tendering  issue  of  fact. 
The  nature  of  a  demurrer  to  the  declaration  and  of  plea,  and 
the  different  kinds  of  plea,  being  now  explained,  we  will  con- 
tinue our  examination  of  the  process  of  pleading,  and  will  first 
suppose  that  the  defendant  takes  the  course  of  pleading  to  the 
declaration,  in  bar,  by  way  of  traverse.  In  this  case  it  is  evi- 
dent that  a  question  is  at  once  raised  between  the  parties;  and 
it  is  a  question  of  fact, —  viz.,  whether  the  facts  in  the  declara- 
tion, which  the  traverse  denies,  be  true.  A  question  being  thus 
raised,  or,  in  other  words,  the  parties  having  arrived  at  a  spe- 
cific point  or  matter,  affirmed  on  the  one  side  and  denied  on 
the  other,  the  defendant  (as  the  party  traversing)  is,  conform- 
ably to  the  ancient  practice,  (c)  in  general  obliged  to  offer  or 
refer  this  question  to  some  mode  of  trial;  and  does  this  by  an- 
te) Vide  supra,  p.  149. 

the  merits  without  demanding  a  nil-  In  Iowa  the  code  permits  a  de- 
ing  on  his  demurrer,  the  defendant  murrer  only  when  the  petition,  "  by 
waives  formal  objections.  Danielson  a  fair  and  natural  construction,  does 
v.  Gude,  11  Colo.  87.  Facts  not  ap-  not  show  a  substantial  cause  of  ac- 
pearing  on  the  face  of  the  bill  cannot  tion."  McFaul  v.  Ramsey,  20  How. 
be  considered  on  demurrer.  Stewart  523;  Birdseye  v.  Smith,  32  Barb.  219. 
v.  Masterson,  131  U.  S.  151.  If  the  want  of  jurisdiction  be  ap- 
At  common  law,  if  the  declaration,  parent  on  the  face  of  the  declara- 
by  fair  construction  of  the  language,  tion,  the  defect  may  be  taken  ad- 
states  a  cause  of  action,  it  is  good,  vantage  of  by  demurrer  or  motion. 
Cook  v.  Scott,  1  Gilm.  333;  People  v.  Susquehanna  &  W.  V.  R.  Co.  v. 
Lane,  36  III  App.  649.  Blatchford,  78  U.  S.  172. 


192  CAUSES   AND  FOKMS   OF   ACTION.  [§  105. 

nexing  to  the  traverse  an  appropriate  formula,  proposing  either 
a  trial  by  the  country  (i.  e.,  by  a  jury),  as  in  the  example,  pages 
188-89,  or  such  other  method  of  decision  as  by  law  belongs  to 
the  particular  point.  If  this  be  accepted  by  his  adversary,  the 
parties  are  then  (conformably  to  the  language  of  the  ancient 
pleading)  (<#)  said  to  be  at  issue;  and  the  question  itself  is 
called  the  issue.  Consequently  a  party  who  thus  traverses, 
annexing  such  formula,  is  said  to  tender  issue;  and  the  issue  so 
tendered  is  called  an  issue  in  fact.  Thus,  in  the  example  at 
pages  188-89,  the  defendant,  by  his  plea,  tenders  an  issue  in 
fact  on  the  want  of  repair.1 

2.  By  tendering  issue  of  law.  If  it  be  next  supposed  that, 
instead  of  traversing,  the  defendant  chooses  to  demur,  it  is 
obvious  that  a  question  is  in  this  case  also  raised  between  the 
parties;  and  it  is  a  question  of  law,  viz.,  whether  the  declara- 
tion be  sufficient  in  point  of  law  to  maintain  the  action.  The 
defendant,  therefore,  as  the  party  demurring,  by  analogy  to  the 
mode  observed  with  respect  to  an  issue  in  fact,  uses  a  formula, 
referring  that  question  to  the  proper  mode  of  decision,  viz., 
the  judgment  of  the  court,  as  in  the  example,  page  190 ;  and  as 
upon  a  traverse,  he  tenders  an  issue  in  fact,  so  he  is  said  in 
this  case  to  tender  an  issue  in  law.  Thus,  in  the  same  exam- 
ple, the  defendant,  by  his  demurrer,  tenders  an  issue  in  law 
on  the  sufficiency  of  the  declaration.  And  here  it  is  to  be  ob- 
served that  while  upon  a  traverse  a  party  is  in  general  obliged 
to  tender  issue,  upon  a  demurrer  he  always  necessarily  does  so; 
for  the  only  known  form  of  a  demurrer  contains  an  appeal  to 
the  judgment  of  the  court;  but,  on  the  other  hand,  as  will  ap- 
pear in  a  subsequent  part  of  the  work,  a  party  may  sometimes 
traverse  or  deny,  without  offering  any  mode  of  trial. 

§  105.  Accepting  the  issue. —  The  issue,  whether  in  fact  or 
law,  being  thus  tendered,  it  is  necessary,  before  the  issue  is 
complete,  that  it  be  accepted.  And  this  subject  shall  be  con- 
sidered first,  as  it  respects  the  issue  in  law. 

(d)  Vide  supra,  p.  147. 

1  All  rights  of  action  and  all  special    PL,  ch.  1,  sec.  4;  3  Cooley's  Black, 
defenses  result  from  matter  of  fact    (4th  ed.)  313-15. 
and  matter  of  law  combined.  Gould's 


§  106.]  PKOCEEDINGS   IN   AN   ACTION.  193 

§  106.  An  issue. — The  tender  of  the  issue  in  law  is  neces- 
sarily accepted  by  the  plaintiff;  for  he  has  no  ground  of  ob- 
jecting either  to  the  question  itself,  or  the  proposed  mode  of 
decision.1  A  question  on  the  legal  sufficiency  of  the  declara- 
tion he  cannot,  of  course,  without  abandoning  his  own  form 
of  proceeding,  decline ;  and  with  respect  to  the  mode  of  decis- 
ion, viz.,  the  judgment  of  the  court,  there  is,  in  matters  of 
law,  no  alternative  method.  He  is  therefore  obliged  to  accept, 
or  join  in  the  issue  at  law ;  and  does  so  by  a  set  form  of 
words  called  joinder  in  demurrer,  of  which  the  following  is 
an  example: 


JOINDER   IN    DEMURRER. 


In  the  King's  Bench. 

Term,  in  the year  of  the  reign 

of  King  George  the  Fourth. 
A.B.  * 

v. 
C.  D. 

And  the  said  A.  B.  says  that  the  said  declaration  and  the 
matters  therein  contained,  in  manner  and  form  as  the  same 
are  above  pleaded  and  set  forth,  are  sufficient  in  law  for  him, 
the  said  A.  B.,  to  have  and  maintain  his  aforesaid  action  against 
him,  the  said  C.  P.  And  the  said  A.  B.  is  ready  to  verify  and 
prove  the  same  as  the  court  shall  direct  and  award.  Where- 
fore, inasmuch  as  the  said  0.  D.  hath  not  answered  the  said 
declaration,  nor  hitherto  in  any  manner  denied  the  same,  the 
said  A.  B.  prays  judgment,  and  his  debt  aforesaid,  together 
with  his  damages  by  him  sustained,  by  reason  of  the  deten- 
tion thereof,  to  be  adjudged  to  him. 

But  the  tender  of  the  issue  in  fact  is  not  necessarily  accepted 
by  the  plaintiff ;  for,  first,  he  may  consider  the  traverse  itself 
as  insufficient  in  law.  It  will  be  recollected  that  by  the 
traverse  the  defendant  may  deny  either  the  whole  or  &part  of 
the  declaration;  and,  in  the  latter  case,  the  traverse  may,  in 
the  opinion  of  the  plaintiff,  be  so  framed  as  to  involve  a  part 
immaterial  or  insufficient  to  decide  the  action?  Again,  he  may 

i  Brown  v.  Key  &  Jones,  10  G.  &  J.        2  Hopkins  v.  Medley,  97  III  403. 
334. 


194:  CAUSES   AND   FORMS   OF   ACTION.  [§  106. 

consider  the  traverse  as  defective  in  point  of  form,  and  object 
to  its  sufficiency  in  law  on  that  ground.  So,  in  his  opinion, 
the  mode  of  trial  proposed  may,  in  point  of  law,  be  inap- 
plicable to  the  particular  kind  of  issue.  On  such  grounds, 
therefore,  he  has  an  option  to  demur  to  the  traverse  as  in- 
sufficient in  law.  The  effect  of  this  demurrer,  however,  would 
only  be  to  postpone  the  acceptance  of  issue  by  a  single  stage; 
for  by  the  demurrer  he  tenders  an  issue  in  law;  and  his  ad- 
versary, according  to  the  principle  already  laid  down,  (e)  would 
be  obliged  to  join  in  demurrer,  that  is,  to  accept  the  issue  in 
law  in  the  next  pleading.  On  the  other  hand,  supposing  a 
demurrer  not  to  be  adopted,  the  alternative  course  will  be 
to  accept  the  tendered  issue  of  fact,  and  also  the  mode  of  trial 
which  the  traverse  proposes;  and  this  is  done  (in  case  of  trial 
by  jury)  by  a  set  form  of  words,  called  a,  joinder  in  issue  or  a 
similiter;  in  the  following  form  :l 

JOINDER  IN   ISSUE, 

or, 

8IMILITER. 

Upon  the  traverse,  in  p.  188. 

In  the  King's  Bench. 

Term,  in  the year  of  the  reign 

of  King  George  the  Fourth. 
A.  B. ) 

v-    r 
C.  D.  } 

And  the  said  A.  B.,  as  to  the  plea  of  the  said  C.  D.  above 
pleaded,  and  whereof  he  has  put  himself  upon  the  country, 
doth  the  like. 

(e)  Supra,  p.  149. 

*  A  trial  without  an  issue  is  a  nul-  Gillispie  v.  Smith,  29  HI.  476.    Such 

lity.    Hubler  v.  Pullen,  9  Ind.    273,  an  objection  after  verdict  is  frivolous. 

68  Am.  Dec.  620 ;  Israel  v.  Reynolds,  Id.    And  though  defective  in  form 

11  III  218;  Reynolds  v.  Stockton,  140  will  be  held  good.    Everett  v.  De- 

U.  &  254 ;  Munday  v.  Vail,  34  N.  J.  L.  Groff,  1  Cow.  213 ;  Sayer  v.  Pocock, 

418.    See  these  cases,  Hughes,  Tech.  Cowp.  407;  Shaw  v.  Redmond,  11  S. 

Law.    But  the  formal  joinder  in  is-  &  R.   277 ;  Whiting  v.   Cochran,  ft 

sue  may  be  waived  and  is  cured  by  Mass.  533 ;  Babcock  v.  Huntington, 

verdict    Hazen  v.  Lundy,  83  111.  241 ;  2  Day,  392. 


§  107.]  PEOCEEDINGS  IN  AN  ACTION.  195 

The  issue  in  law  or  fact  being  thus  tendered,  and  accepted 
on  the  other  side,  the  parties  are  at  issue;  and  the  pleading  is 
at  an  end  [so  far  as  that  particular  point  is  concerned]. 

Hitherto  it  has  been  supposed  that  the  defendant  either 
pleads  in  bar,  1>y  way  of  traverse,  or  demurs  to  the  declaration ; 
but  we  will  now  suppose  him  to  plead  either  one  of  the  kinds 
of  dilatory  plea,  or  a.  plea  in  bar,  Tnj  way  of  confession  and  avoid- 
ance. In  either  case  the  plaintiff  has  the  option  of  demurring 
to  the  plea, —  as  being,  in  substance  or  form,  an  insufficient 
answer,  in  point  of  law,  to  the  declaration, —  or  of  pleading 
to  it  by  way  of  traverse,  or  by  way  of  confession  and  avoid- 
ance *  of  its  allegations.  Such  pleading  (f)  on  the  part  of  the 
plaintiff  is  called  the  replication? 

If  the  replication  be  by  way  of  traverse,  it  is  in  general  nec- 
essary (as  in  the  case  of  the  plea)  that  it  should  tender  issue. 
So,  if  the  plaintiff  demur,  an  issue  in  law  is  necessarily  ten- 
dered ;  and  in  either  case  the  result  is  a  joinder  in  issue,  upon 
the  same  principles  as  above  explained  with  respect  to  the 
plea.  But  if  the  replication  be  in  confession  and  avoidance, 
the  defendant  may  then,  in  his  turn,  either  demur,  or,  by  a 
pleading,  traverse,  or  confess  and  avoid,  its  allegations.  If  such 
pleading  take  place  it  is  called  the  rejoinder. 

§  107.  Course  and  extent  of  pleadiiig. — In  the  same  man- 
ner, and  subject  to  the  same  law  of  proceeding,  viz.,  that  of 
demurring,  or  traversing,  or  pleading  in  confession  and  avoid- 
ance, is  conducted  all  the  subsequent  altercation  to  which  the 
nature  of  the  case  may  lead ;  and  the  order  and  denominations 
of  the  alternate  allegations  of  fact  or  pleadings  throughout  the 
whole  series  are  as  follows :  Declaration,  plea,  replication,  re- 
joinder, surrejoinder,  rebutter  and  surrebutter.  After  the  surre- 
butter the  pleadings  have  no  distinctive  names;  for  beyond 
that  stage  they  are  very  seldom  found  to  extend,  (g) 

To  whatever  length  of  series  the  pleadings  may  happen  to 
lead,  it  is  obvious  that,  by  adherence  to  the  plan  here  de- 

(/)  See  Appendix,  note  (27). 
(3)  See  Appendix,  note  (88). 

1  Phillips  v.  Harris,  3  J.  J.  Marsh.  Going  to  trial  without  disposing  of 
122.  a  demurrer  is  a  waiver.     Williams 

2  Replication     waives     demurrer,  v.  Baker,  67  I1L  238. 
Warner's  Ex'rs  v.  Bledsoe,  4  Dana,  73. 


196  CAUSES  AND  FORMS   OF  ACTION1.  [§  107. 

scribed,  one  of  the  parties  must,  at  some  period  of  the  pro- 
cess, more  or  less  remote,  be  brought  either  to  demur  or  to 
traverse;  for,  as  no  case  can  involve  an  inexhaustible  store  of 
new  relevant  matter,  there  must  be  somewhere  a  limit  to 
pleading  in  the  way  of  confession  and  avoidance.  Examples 
have  already  been  given  of  the  demurrer  and  traverse  occur- 
ring at  the  second  stage  of  the  pleading,  viz.,  in  the  plea:  in 
those  which  here  follow,  they  are  not  produced  till  after  a 
longer  series. 

Let  the  plaintiff  be  supposed  to  declare  in  assumpsit,  as  in 
page  186,  and  the  defendant  to  plead  in  abatement  (for  exam- 
ple, the  non-joinder  of  a  joint  contractor,  as  in  page  186-).  The 
plaintiff  may  then  be  supposed  to  reply  thus : 


EEPLICATION. 

By  way  of  Traverse. 

Upon  the  plea,  p,  186. 
In  the  King's  Bench. 

— —  Term,  in  the -year  of  the  reign 

of  King  George  the  Fourth. 
A.  B. ) 
v.     V 
C.  D.  ) 

And  the  said  A.  B.  says  that  his  said  writ  and  declaration, 
by  reason  of  anything  in  the  said  plea  alleged,  ought  not  to 
be  quashed,  because  he  says  that  the  said  promises  and  under- 
takings were  made  by  the  said  C.  D.  alone,  in  manner  and 
form  as  the  said  A.  B.  hath  above  complained ;  and  not  by  the 
said  C.  D.  jointly  with  the  said  G.  £L,  in  manner  and  form  as 
the  said  C.  D.  hath  above,  in  his  said  plea,  alleged.  And  this 
the  said  A.  B.  prays  may  be  inquired  of  by  the  country. 

Again,  let  the  plaintiff  be  supposed  to  declare  in  covenant 
on  an  indenture  of  lease  (as  in  page  158),  and  the  defendant  to 
plead  in  bar,  by  way  of  confession  and  avoidance  (for  example, 
a  release,  as  in  page  189);  the  plaintiff  may  then  be  supposed 
to  reply  thus: 


§  107.]  PROCEEDINGS   IN   AN   ACTION.  197 

REPLICATION. 

By  way  of  Confession  and  Avoidance. 

Upon  the  plea,  p.  189. 

In  the  King's  Bench. 

Term,  in  the year  of  the  reign 

of  King  George  the  Fourth. 
A.  B. 

v. 
C.  D.  , 

And  the  said  A.  B.  says  that  by  reason  of  anything  in  the 
said  plea  alleged,  he  ought  not  to  be  barred  from  having  and 
maintaining  his  aforesaid  action  against  the  said  C.  D.,  be- 
cause he  says  that  he,  the  said  A.  B.,  at  the  time  of  the  mak- 
ing of  the  said  supposed  deed  of  release,  was  unlawfully 
imprisoned  and  detained  in  prison  by  the  said  C.  D.  until,  by 
force  and  duress  of  that  imprisonment,  he,  the  said  A.  B., 
made  the  said  supposed  deed  of  release  as  in  the  said  plea 
mentioned.  And  this  the  said  A.  B.  is  ready  to  verify. 
"Wherefore  he  prays  judgment  and  his  damages  by  him  sus- 
tained by  reason  of  the  said  breach  of  covenant  to  be  ad- 
judged to  him.  (A) 

To  this  the  defendant  may  be  supposed  to  rejoin  as  follows : 

EEJOINDEK. 

By  way  of  Traverse. 

Upon  the  above  replication, 

In  the  King's  Bench. 

Term,  in  the -year  of  the  reign 

of  King  George  the  Fourth, 
C.  D.) 
ats    > 
A.  B.  ) 

And  the  said  C.  D.  saith  that  by  reason  of  "anything  in  the 
said  replication  alleged,  the  said  A.  B.  ought  not  to  have  or 
maintain  his  aforesaid  action  against  him,  the  said  C.  D.,  be- 
cause, he  says,  that  the  said  A.  B.  freely  and  voluntarily  made  the 
said  deed  of  release,  and  not  by  force  and  duress  ot  imprison- 
ment, in  manner  and  form  as  by  the  said  replication  alleged. 
And  of  this  the  said  C.  D.  puts  himself  upon  the  country,  (i) 

In  these  examples  the  parties  ultimately  arrive  at  a  trav- 
erse; but  it  may  happen  that  in  any  part  of  the  series  a  de- 
murrer instead  of  a  traverse  may  take  place.  Thus,  if  the 

(h)  See  a  similar  replication,  2  Richardson's  K.  B  ,  p.  60. 
(i)  See  a  similar  rejoinder,  2  Richardson's  K.  B.,  p.  60. 


198  -CAUSES   AND   FORMS   OF  ACTION.  [§  108. 

defendant  in  the  last  example  choose  to  dispute  the  sufficiency 
in  point  of  law  of  the  substance  of  the  matter  in  the  replica- 
tion, he  would,  instead  of  a  rejoinder,  demur  to  the  replication, 
thus: 

DEMUBREB. 
To  the  replication,  in  p.  197. 

In  the  King's  Bench, 

Term,  in  the year  of  the  reign 

C.  D.  J  of  King  George  the  Fourth. 

ats    v 
A.  B.  j 

And  the  said  C.  D.  says  that  the  said  replication  of  the 
said  A.  B.  to  the  said  plea  of  him,  the  said  C.  D.,  and  the 
matters  therein  contained,  in  manner  and  form  as  the  same 
are  above  pleaded  and  set  forth,  are  not  sufficient  in  law  for 
the  said  A.  B.  to  have  or  maintain  his  aforesaid  action  against 
the  said  C.  D. ;  and  that  he,  the  said  C.  D.,  is  not  bound  by 
the  law  of  the  land  to  answer  the  same.  And  this  the  saicl 
0.  D.  is  ready  to  verif}\  Wherefore,  for  want  of  a  sufficient 
replication  in  this  behalf,  the  said  C.  D.  prays  judgment  if  the 
said  A.  B.  ought  to  have  or  maintain  his  aforesaid  action 
against  him. 

As  the  parties  will  at  length  arrive  at  demurrer  or  traverse, 
so,  whenever  a  traverse  is  at  length  produced,  it  comprises,  in 
general,  a  tender  of  issue  (as  in  the  above  examples) ;  and  a 
demurrer  necessarily  involves  a  tender  of  issue,  the  conse- 
quence of  which  is,  in  either  case,  a  joinder  in  issue,  exactly 
upon  the  same  principle  as  above  explained,  with  respect  to 
the  plea;  so  that  the  parties  arrive  at  issue,  after  a  longer  series 
of  pleading,  precisely  in  the  same  manner  as  when  the  process 
terminates  at  the  earliest  possible  stage.  Such  is,  in  a  general 
view,  the  nature  of  the  process  of  pleading,  and  the  manner 
of  coming  to  issue.  (&) 

§108.  Pleas  puis  darreign  continuance. —  The  pleading 
has  been  hitherto  supposed  to  take  its  direct  and  simple  course. 
There  are,  however,  some  pleas  and  incidents  of  occasional 
occurrence,  by  which  its  progress  is  sometimes  broken  or 
varied ;  and  of  these  it  will  now  be  proper  to  give  some  account. 
The  pleas  here  referred  to  are  called  pleas  puis  darreign 
continuance. 

(k)  See  Appendix,  note  (29). 


§  108.]  PEOCEEDINGS   IN   AN  ACTION.  199 

It  will  be  remembered  (Z)  that  under  the  ancient  law  there 
were  continuances,  i.  e.,  adjournments  of  the  proceedings  for 
certain  purposes,  from  one  day  or  one  term  to  another ;  and 
that  in  such  cases  there  was  an  entry  made  on  the  record  ex- 
pressing the  ground  of  the  adjournment,  and  appointing  the 
parties  to  re-appear  at  the  given  day.  In  the  intervals  be- 
tween such  continuances  and  the  day  appointed,  the  parties 
were  of  course  out  of  court,  and  consequently  not  in  a  situa- 
tion to  plead.  But  it  sometimes  happened  that  after  a  plea 
had  been  pleaded,  and  while  the  parties  were  out  of  court,  in 
consequence  of  such  a  continuance,  a  new  matter  of  defense 
arose,  which  did  not  exist,  and  which  the  defendant  had  con- 
sequently no  opportunity  to  plead,  "before  the  last  continuance. 
This  new  defense  he  was  therefore  entitled  at  the  day  given 
for  his  re-appearance  to  plead  as  a  matter  that  had  happened 
after  the  last  continuance  —  (puis  darreign  continuance  — 
post  ultimam  continuationem).  In  the  same  cases  as  occa- 
sioned a  continuance  in  the  ancient  law,  but  in  no  other,  a 
continuance  still  takes  place.  At  the  time,  indeed,  when  the 
pleadings  are  filed  and  delivered,  no  record  exists,  and  there 
is  therefore  no  entry  at  that  time  made  on  record  of  the 
award  of  a  continuance ;  but  the  parties  are  from  the  day 
when,  by  the  ancient  practice,  a  continuance  would  have  been 
entered,  supposed  to  be  out  of  court,  and  the  pleading  is  sus- 
pended till  the  day  arrives  to  which,  by  the  ancient  practice, 
the  continuance  would  extend.  And  that  day  the  defendant 
is  entitled,  if  any  new  matter  of  defense  has  arisen  in  the  in- 
terval, to  plead  it  according  to  the  ancient  plan,  puis  darreign 
continuance.1  The  following  is  an  example  of  the  form : 

CD  Supra,  p.  148. 

1  Fitzpatrick  v.  Fitzpatrick,  6  R  L  the  whole  amount  of  his  bond  to  sat- 

64 ;  Rowell  v.  Hayden,  40  Me.  582 ;  isfy  judgments  in  other  suits.    Leg- 

Hendrickson  v.  Hutchinson,  29  N.  gett  v.  Humphreys,  62  U.  S.  66.    See 

J.  L.   180;  Longworth  v.  Flagg,  10  Mount  v.  Scholes,  120  III  894    The 

Ohio  St  800 ;  Mount  v.  Scholes,  120  purpose  of  the  plea  is  to  protect  the 

III  394;  Yeaton  v.  Lynn,  30  U.  S.  defendant  from  liability  for  double 

224 ;  Thompson  v.  United  States,  103  payment    Smith  v.  Carroll,  17  R  L 

id.  480;   Feagin  v.  Pearson,  42  Ala.  125,  12  L.  R  A.  301. 

332.    One  sued  on  a  bond  may  plead  A  release  since  the  last  conlinu- 

puis  darreign  continuance  that  since  ance  may  be   shown  by   this  plea 

the  institution  of  the  suit  he  has  paid  (Wade  v.  Emerson,  17  Mo.  267 ;  Wia- 


200  CAUSES    AND    FORMS    OF   ACTION.  f 

PLEA   PUIS   DARKEIGN   CONTINUANCE. 

In  the  King's  Bench. 

next  after in term,  in  the 

year  of  the  reign  of  King  George  the  Fourth. 
0.  D. ) 
ats    v 
A.  B.  ) 

And  now  at  this  day,  that  is  to  say,  on ,  next  after 

in  this  same  term,  until  which  day  the  plea  aforesaid  was  last 
continued,  come  as  well  the  said  A.  B.  as  the  said  C.  D.,  by 
their  respective  attorneys  aforesaid.  And  the  said  C.  D.  says 
that  the  said  A.  B.  ought  not  farther  to  have  or  maintain  His 
aforesaid  action  against  him ;  because,  he  says,  that  after  the 

last  continuance  of  this  cause,  that  is  to  say", ,  next  after 

,  in  this  same  term,  from  which  day  this  cause  was  last 

continued,  and  before  this  day,  to  wit,  on  the day  of 

,  in  the  year  of  our  Lord ,  at aforesaid,  in  the 

county  aforesaid,  the  said  A.  B.,  by  his  certain  deed  of  release, 
sealed  with  his  seal  [the  release  may  be  here  stated,  as  supra^ 
p.  147].  And  this  the  said  C.  D.  is  ready  to  verify.  Where- 
fore he  prays  judgment  if  the  said  A.  B.  ought  farther  to 
have  or  maintain  his  aforesaid  action  against  him,  etc.  (m) 

A  plea  puis  darreign  continuance  is  always  pleaded  by  way 
of  substitution  for  the  former  plea,  on  which  no  proceeding  is 
afterward  had.1  It  may  be  either  in  bar  or  abatement,  (n) 
and  is  followed,  like  other  pleas,  by  a  replication  and  other 
pleadings  till  issue  is  attained  upon  it.2 

§  109,  Demand  of  view. —  Of  the  incidents  of  occasional  oc- 
currence, by  which  the  progress  of  the  pleading  is  sometimes 
varied,  some  of  the  principal  shall  here  be  noticed ;  and  first, 

(m)  2  Chitty,  676;  1  Arch.  323. 
(n)  Com.  Dig.,  Abatement,  I,  24. 

heart  v.  Legro,  83  N.  H.  177),  and  fenses  in  the  cause,  and  the  parties 

payment    Herod  v.  Snyder,  61  Ind.  proceed  to  settle   the  pleadings  de 

453 ;  Bowne  v.  Joy,  9  Johns.  221.  novo  just  as  though  no  plea  or  pleas 

Extreme  certainty  and  strictness  had  theretofore  been  filed.    Mount  v. 

are  required  in  framing  these  pleas,  Scholes,  120  111.  394     See  Adams  v. 

and  the  plea  must  specify  clearly  the  Filer,  7  Wia  306,  73  Am.  Dec.  410 ; 

date  of  the  last  continuance.    Henry  Lincoln  v.  Thrall,  26  Vt  804 ;  Wallace 

v.  Porter,  29  Ala.  619;    Vicary  v.  v.  McConnell,  38  U.  S.  136;  Angus  v. 

Moore,  2  Watts,  451,  27  Am.   Dec.  Trust  &  S.  B.,  170  111.  298. 
228 ;  Augusta  v.  Moulton,  75  Me.  551.        2  See  Cummings  v.  Smith,  50  Me. 

1 A  plea  puis  darreign  continuance  568,  79  Am.  Dec.  629. 
supersedes  all  other  pleas  and  de- 


§  109.]  PROCEEDINGS   IN   AN  ACTION.  201 

1.  The  demand  of  mew. 

In  most  real  and  mixed  actions,  in  order  to  ascertain  the 
identity  of  the  land  claimed  with  that  in  the  tenant's  posses- 
sion, the  tenant  is  allowed,  after  the  demandant  has  counted, 
to  demand  a  view) l  of  the  land  in  question ;  or,  if  the  subject 
of  claim  be  a  rent,  a  right  of  advowson,  a  right  of  common, 
or  the  like,  a  view  of  the  land  out  of  which  it  issues,  (o)  This, 
however,  is  confined  to  real  or  mixed  actions.  For  in  actions 
personal  the  view  does  not  lie.  (p)  In  the  action  of  dower, 
unde  nihil  habet,  it  has  been  much  questioned  whether  the 
view  be  demandable  or  not ;  (q)  and  there  are  other  real  and 
mixed  actions  in  which  it  is  not  allowed. 

The  view  being  granted,  the  course  of  proceeding  is  to  issue 
a  writ  commanding  the  sheriff  to  cause  the  defendant  to  have 
view  of  the  land.  It  being  the  interest  of  the  demandant  to 
expedite  the  proceedings,  the  duty  of  suing  out  the  writ  lies 
upon  him,  and  not  upon  the  tenant ;  (r)  and  when,  in  obe- 
dience to  its  exigency,  the  sheriff  causes  view  to  be  made,  the 
demandant  is  to  show  to  the  tenant,  in  all  ways  possible,  the 
thing  in  demand,  with  its  metes  and  bounds,  (s) 

On  the  return  of  the  writ  into  the  court,  the  demandant 
must  count  de  novo;  that  is,  declare  again ;  (t)  and  the  plead- 
ing proceeds  to  issue,  (u) 

Co)  Vin.  Ab.,  View;  Com.,  Dig.,  View;  Booth,  87;  2  Saund.  45,  b;  1  Reeves,  435. 

(p)  1  Reeves,  435. 

(9)  The  better  opinion  seem  to  be  that  it  is  not  demandable.    2  Saund.  44,  n.  4, 

(r)  Booth,  40. 

(«)  1  Reeves,  438. 

(f)  Com.  Dig.,  Pleader,  2  Y.  8;  Booth,  ubi  supra. 

(«)  Both  this  proceeding  of  demanding  a  view  and  the  voucher  to  warranty,  after- 
wards  mentioned,  are,  in  the  present  rarity  of  real  actions,  unknown  in  practice.  They 
seem,  however,  to  deserve  notice  as  illustrating  the  principles  of  pleading. 

1  The  reason  for  granting  view  is,  Boardman  v.  Westchester  Fire  Ins. 
in  ordinary  cases,  to  enable  the  jury  Co.,  54  Wis.  364 ;  Stockwell  v.  C.  C. 
to  apply  the  evidence.  Washburn  v.  &  D.  R  Co.,  43  Iowa,  470 ;  Bedell  v. 
M.  &  L.  W.  Ry.,  59  Wis.  364;  Heady  Berkey,  76  Mich.  435;  Fraedrich  v. 
v.  Vevay  Turnpike  Co.,  53  Ind.  117 ;  Flieth,  64  Wis.  184.  In  eminent  do- 
Wright  v.  Carpenter,  49  CaL  609 ;  main  cases.  Parks  v.  Boston,  15  Pick. 
Close  v.  Samm,  27  Iowa,  413.  Cf.  209 ;  Galena  &  S.  W.  Ry.  v.  Haslam, 
Evansville  Ry.  v.  Cochran,  10  Ind.  73  I1L  494.  See,  also,  Close  v.  Samm, 
560.  It  is  allowed  in  almost  any  civil  27  Iowa,  507,  92  Am.  Dec.  342,  note, 
action  when  the  view  would  aid  The  practice  of  viewing  the  prem- 
the  jury,  including  equitable  suits,  ises  in  actions  for  overflowing  lands 


202  CAUSES   AND    FORMS    OF   ACTION.  [§    110. 

§  110.  Toucher  of  warranty. — 

2.  Another  incident  that  deserves  notice  is  voucher  to  war- 
ranty.1 

A  warranty  is  a  covenant  real  annexed  to  lands  and  tene- 
ments whereby  a  man  is  bound  to  defend  such  lands  and 
tenements  for  another  person;  and,  in  case  of  eviction  by 
title  paramount,  to  give  him  lands  of  equal  value,  (a?)  Toucher 
to  warranty  (vocatio  ad  warrantizandum)  is  the  calling  of  such 
warrantor  into  court  by  the  party  warranted  (when  tenant  in 
a  real  action  brought  for  recovery  of  such  lands)  to  defend 
the  suit  for  him ;  (y)  and  the  time  of  such  voucher  is  after  the 
demandant  has  counted.  It  lies  in  most  real  and  mixed  ac- 
tions, but  not  in  personal,  (z) 

Where  the  voucher  has  been  made  and  allowed  by  the 
court,  the  vouchee  either  voluntarily  appears,  or  there  issues 
a  judicial  writ  (called  a  summons  ad  warrantizandum)  com- 
manding the  sheriff  to  summon  him. 

"When  he  either  voluntarily  or  in  obedience  to  this  writ  ap- 
pears and  offers  to  warrant  the  land  to  the  tenant,  it  is  called 
entering  into  the  warranty;  after  which  he  is  considered  as 
tenant  in  the  action  in  the  place  of  the  original  tenant.  The 
demandant  then  counts  against  him  de  novo,  (a)  the  vouchee 
pleads  to  the  new  count,  and  the  cause  proceeds  to  issue. 

(x)  Co.  Litt.  365;  Com.  Dig.,  Garranty,  A. 

(y)  Co.  Litt.  101  b;  Com.  Dig.,  Voucher,  A.  1;  Booth,  43;  2  Sauiid.  82,  n.  L 

(z)  Com.  Dig.,  Voucher,  A.  1;  2  Saund.  32,  n.  1. 

(a)  2  last  241a;  2  Saund.  32,  n.  1;  Booth,  46. 

or  nuisances,  or  condemnation,  is  not  (b)  In  America. —  In  states  where 
unusual,  and  is  often  regulated  by  the  statute  of  Anne  not  in  force, 
statutes.  A  valuable  article  is  found  view  cannot  be  granted  against  con- 
in  26  Cent  Law  J.  436.  The  follow-  sent  Dowd  v.  Guthrie,  13  Brad.  658. 
ing  is  a  synopsis :  The  rule  as  to  discretion  of  the 
(a)  At  common  Jaw. —  It  was  not  court  is  quite  generally  followed, 
allowed  in  personal  actions  (Jacobs'  Clayton  v.  Chi.  &  D.  Ry.,  67  Iowa, 
Diet,  tit  View) ;  but  by  section  8  of  338 ;  Richmond  v.  Atkinson,  58  Mich. 
4  Ann,  ch.  16,  extended  to  waste,  413;  Pick  v.  Rubicon  Co.,  27  Wis. 
trespass,  ejectment,  etc.  In  1757  the  433 ;  Leidheim  v.  Meyers,  95  Mich, 
courts  held  that  it  was  within  the  586. 

discretion  of  the  court    1  Burrows,  1 3  Cooley's  Black.  (3d  ed.)  300.   No- 

253.    See  Flint  v.  Hill,  11  East,  184 ;  tice  to  defend  given  by  parties  sec- 

Stoner  v.  Menham,  2  Exch.  R.  382.  ondarily  liable  is  analogous.    City  of 

Chicago  v.  Robbins,  2  Black,  418. 


§  HI.]  PROCEEDINGS   IN   AN   ACTION.  203 

§  111,  Oyer  and  profert. — 

3.  A  party  in  pleading  may  also  have  occasion  to  make  do- 
mand  of  oyer.  (5) 1 

Where  either  party  alleges  any  deed,  he  is  in  general  obliged, 
by  a  rule  of  pleading  that  will  be  afterwards  considered  in  its 
proper  place,  to  make  profert  of  such  deed;  that  is,  to  pro- 
duce it  in  court  simultaneously  with  the  pleading  in  which  it 
is  alleged.  This,  in  the  days  of  oral  pleading,  was  of  course 
an  actual  production  in  court.  Since  then,  it  consists  of  a 
formal  allegation  that  he  shows  the  deed  in  court ;  it  being,  in 
fact,  retained  in  his  own  custody.  An  example  of  this  allega- 
tion will  be  found  in  the  declaration  of  debt  on  a  bond,  as 
above  given,  (c) 

Where  profert  is  thus  made  by  one  of  the  parties,  the  other, 
before  he  pleads  in  answer,  is  entitled  to  demand  oyer;  that 
is,  to  hear  it  read.  For  it  is  to  be  observed,  that  the  forms  of 
pleading  do  not,  in  general,  require  that  the  whole  of  any  in- 
strument which  there  is  occasion  to  allege  should  be  set  forth. 
So  much  only  is  stated  as  is  material  to  the  purpose ;  of  which 
the  example  last  cited  will  also  serve  for  illustration.  The 
other  party,  however,  may  reasonably  desire  to  hear  the 
whole ;  and  this  either  for  the  purpose  of  enabling  him  to  as- 
certain the  genuineness  of  the  alleged  deed,  or  of  founding  on 
some  part  of  its  contents,  not  set  forth  by  the  adverse  pleader, 
some  matter  of  answer.  He  is  therefore  allowed  this  privi- 
lege, of  hearing  the  deed  read  verbatim. 

When  the  profert  was  actually  made  in  open  court,  the  de- 
mand of  oyer,  and  the  oyer  given  upon  it,  took  place  in  the 
same  manner ;  and  the  course  was,  that  on  demand  by  one  of 

(5)  See  the  whole  law  and  practice  of  oyer  stated,  1  Sellon,  881:  1  Tidd,  618  (4th  ed.);  1 
Chitty,  414;  1  Arch.  164;  2  Arch.  Pract  194, 198. 
(c)  Supra,  p.  157. 

1  Oyer  does  not  include  or  allow  in-  deed  a  part  of  the  pleading  and  rec- 

spection  of  any  document  except  the  ord.  Suydam  v.  Williamson,  20  How. 

one  upon  which  suit  is  brought  See  441 ;  Rantin  v.  Robertson,  2  Strobh. 

Inspection,  post;  2  Arch.  Pr.  13,  (S.  C.)  366.  A  denial  of  oyer  when 

p.  1019 ;  Chetwind  v.  Marnell,  1  B.  &  it  should  be  granted  is  ground  for  a 

P.  271.  Profert  is  required  and  oyer  writ  of  error.  Chitty  PL  (16th  Am.  ed. 

ordered  only  of  documents  of  which  by  Perkins),  *446 ;  Osborn  v.  Reed,  1 

the  party  has  custody.  Judge  of  Black.  126;  Judge  of  Probate  v.  Mer- 

Probate  v.  Merrill,  6  N.  H.  256.  rill,  6  N.  H.  256. 

The  effect  of  oyer  is  to  make  the 


204:  CAUSES   AND   FORMS   OF  ACTION.  [§  HI. 

the  pleaders  the  deed  was  read  aloud  by  the  pleader  on  the 
other  side,  (d)  By  the  present  practice,  the  attorney  for  the 
party  by  whom  it  is  demanded,  before  he  answers  the  plead- 
ing in  which  the  profert  is  made,  sends  a  note  to  the  attor- 
ney on  the  other  side,  containing  a  demand  of  over ;  on  which 
the  latter  is  bound  to  carry  to  him  the  deed,  and  deliver  to 
him  a  copy  of  it,  if  required,  and  this  is  considered  as  oyer, 
or  an  actual  reading  of  the  deed  in  court,  (e) l 

Oyer  is  demandable  in  all  actions :  real,  personal,  and  mixed. 

Oyer  was  formerly  demandable  not  only  of  deeds,  but  of 
records9  alleged  in  pleading,  and  (as  has  been  before  stated 
in  this  work)  of  the  original  writ  also;(y)  but  by  the  pres- 
ent practice  it  is  not  now  granted  either  of  a  record  or  an 
original  writ ;  (g) 3  and  can  be  had  only  in  the  cases  of  deeds, 
probates  and  letters  of  administration,  etc.,  of  which  profert 
is  made  on  the  other  side :  of  private  writings  not  under  seal, 
oyer  has  never  been  demandable.4 

In  all  cases  where  profert  is  necessary  and  where  it  is  also 

(d)  Semb.  Com.  Dig.,  Pleader,  p.  I;  Simpson  v.  Garside,  Lutw.  1644.    In  Jevona  v.  Har- 
rldge,  1  Sid.  808,  the  reading  of  the  deed  is  said  to  be  the  act  •/  the  court;  but  the  true 
doctrine  seems  to  be  that  laid  down  in  Lutwyche.    The  rule  seems  to  have  been  that  write 
were  read  by  the  court,  but  deeds  by  the  pleader.    Vide  Com.  Dig.,  Pleader,  p.  L 

(e)  Page  v.  Divine,  2  T.  R.  40;  1  Tidd,  518  (4th  ed.);  1  Sel.  264. 
(/)  Vide  supra,  p.  186. 

(0)  As  to  the  Original  Writ,  vide  supra,  p.  187.  As  to  records,  vide  King  T.  Amery,  1 
T.R.150. 

1  Setting  out  an  instrument  in  full  practice  is  for  the  defendant  to  ob- 
has  been  held  sufficient  oyer.    Re-  tain  an  order  for  the  inspection  of 
gents  of  U.  of  M.  v.  Detroit  Young  the  document,  which  compels   the 
Men's  Ass'n,  12  Mich.  138.    But  the  plaintiff  to  produce  it.    Whittaker 
opposite  party  has  the  right  to  insist  v.   Izod,    2   Taunt  114 ;   Whitter  v. 
upon  the  production  of  the  original,  Cazelet,  2  Term,  683 ;  Blakely  v.  Por- 
and  the  refusal  of  the  court  to  so  ter,  1  Taunt.  386.  See  on  inspection, 
order  is  error.    Judge  of  Probate  v.  2  Archbold's  Practice  (1840),    1023. 
Merrill,  6  N.  H.  256 ;  Smith  v.  Wood-  The  practice  is  analogous  to  the  idea 
ward,  4  East,   685 ;  Rand  v.  Rand,  4  of  oyer,  and  discovery  in  equity,  and 
N.  II.  278.  the  code  practice  is  analogous  to  this. 

2  See  Wood  v.  Griffith,  Ld.  Raym.  Since  the  abolition  of  oyer  in  Eng- 
8a  land  by  C.  L.  P.  Act,  1852,  inspection 

1  Ruggles  v.  Adams,  8  A.  K.  Marsh,  is  the  remedy.    Williams'  Notes,  1 

429 ;  Gatton  v.  Dimmett,  27  III  400 ;  Saund.  R  9. 

Regents  of  U.  of  M.  v.  Detroit  Ass'n,        Profert  is  unnecessary  when  the 

12  Mich.  138;  1  Chitty  PL  (16th  Am.  deed  is  stated  only  for  inducement 

ed.  Perkins),  *446.  Banfield  v.  Leigh,  8  T.  R  571 ;  Jev- 

4  When  the  declaration  counts  upon  ens  v.  Harridge,  1  Saund.  9o. 
an  instrument  not  under  seal,  the 


?  111.]  PROCEEDINGS    IN   AN   ACTION.  205 

in  fact  made,  the  opposite  party  has  a  right  if,  he  pleases,  to 
demand  oyer;  but,  if  it  be  unnecessarily  made,  this  does  not 
entitle  to  oyer;  and  so  if  profert  be  omitted  when  it  ought 
to  have  been  made,  the  adversary  cannot  have  oyer,  but  must 
demur.  (K) 

When  a  deed  is  pleaded  with  profert,  it  is  supposed  to  re- 
main in  court  during  all  the  term  in  which  it  is  pleaded,  but 
no  longer,  unless  the  opposite  party  during  that  term  plead 
in  denial  of  the  deed;  in  which  case  it  is  supposed  to  remain 
in  court  till  the  action  is  determined.  Hence  it  is  a  rule  that 
oyer  cannot  be  demanded  in  a  subsequent  term  to  that  in  which 
profert  is  made,  (i) 

A  party  having  a  right  to  demand  oyer  is  yet  not  obliged, 
in  all  cases,  to  exercise  that  right ;  (&)  nor  is  he  obliged,  in  all 
cases,  after  demanding  it,  to  notice  it  in  the  pleading  that  he 
afterwards  files  or  delivers.  (/)  Sometimes,  however,  he  is 
obliged  to  do  both,  viz.,  where  he  has  occasion  to  found  his 
answer  upon  any  matter  contained  in  the  deed  of  which  pro- 
fert is  made,  and  not  set  forth  by  his  adversary.  In  these 
cases,  the  only  admissible  method  of  making  such  matter 
appear  to  the  court  is  to  demand  oyer,  and,  from  the  copy 
given,  s'et  forth  the  whole  deed  verbatim  in  his  pleading,  (m) 
The  following  is  an  example  of  the  manner  in  which  the  de- 
mand of  oyer  is  thus  entered  and  the  deed  set  forth  in  the 
pleading: 

PLEA   IN  BAB. 

To  debt  on  bond,  (n) 
In  the  King's  Bench. 

Term,  in  the year  of  the  reign 

of  King  George  the  Fourth. 
C.  D.  ) 
ats    v 
A.  B  j 

And  the  said  C.  D.,  by ,  his  attorney,  comes  and 

defends  the  wrong  and  injury  when,  etc.,  and  craves  oyer  of 

(A)  Arch.  164. 

CO  1  Tidd,  520;  1  Chitty,  418. 
(fc)  Arch.  164-5. 
(1)  1  Tidd,  522. 

(w)  Cora.  Dig.,  Pleader,  2  V.  4;  Arlington  v.  Merricke,  2  Saund.  410,  n.  2;  Jevens  v.  Hap- 
ridge,  1  Saund.  9,  b,  n.  1;  Stibbs  v.  Clough.  1  Str.  227;  Fort.  354;  Colton  v.  Goodridge,  2 
Black.  1108. 

<ri)  See  the  declaration,  supra,  p.  157. 
14 


CAUSES    AND   FORMS    OF    ACTION.  [§  112. 

the  said  writing  obligatory,  and  it  is  read  to  him,  etc.  He 
also  craves  oyer  of  the  condition  of  the  said  writing  obliga- 
tory, and  it  is  read  to  him  in  these  words :  "  Whereas  "  (here 
the  condition  of  the  bond,  which  shall  be  supposed  to  be  for 
payment  of  one  hundred  pounds  on  a  certain  day,  is  set  forth 
verbatim);  which,  being  read  and  heard,  the  said  C.  D.  says 
that  the  said  A.  B.  ought  not  to  have  or  maintain  his  afore- 
said action  against  him,  because  he  says  that  he,  the  said 

C.  D.,  on  the  said day  of  ,  in  the  year  aforesaid,  in 

the  said  writing  obligatory  mentioned,  paid  to  the  said  A.  B. 
the  said  sum  of  one  hundred  pounds  in  the  said  condition  men- 
tioned, together  with  all  interest  then  due  thereon,  according 

to  the  form  and  effect  of  the  said  condition,  to  wit,  at  

aforesaid,  in  the  county  aforesaid.  And  this  the  said  0.  D. 
is  ready  to  verify.  Wherefore  he  prays  judgment  if  the  said 
A.  B.  ought  to  have  or  maintain  his  aforesaid  action  against 
him.  (0) 

§  112.  Imparlance  [or  extension  of  time  to  plead"]. — 
4.  The  last  of  these  incidents  that  need  be  mentioned  is  the 
prayer  of  an  imparlance. 

By  the  ancient  practice,  if  a  party  found  himself  unpre- 
pared to  answer  the  last  pleading  of  his  adversary  immedi- 
ately, his  course  was  to  pray  the  court  to  allow  him  a  farther 
day  for  that  purpose,  which  was  accordingly  granted  by  the 
court  to  any  day  that,  in  their  discretion,  they  might  award, 
either  in  the  same  or  the  next  succeeding  term,  (p)  The 
party  was,  in  this  case,  said  to  pray,  and  the  court  to  grant, 
an  imparlance  (interlocutio,  or  interloquela) ;  a  term  derived 
from  the  supposition  that  in  this  interval  the  parties  might 
talk  together  and  amicably  settle  their  controversy,  (q)  l 

An  imparlance  when  granted  was  one  of  the  cases  of  con- 
tinuance; of  which  general  doctrine  some  explanation  has 
been  before  given,  (r) 

It  was  grantable  in  almost  all  actions:  real,  personal,  and 
mixed,  (s) 

The  prayer  of  imparlance,  when  made  by  the  defendant 
prior  to  his  plea,  was  either  general  or  special.  The  first  was 
simply  a  prayer  for  leave  to  imparl.  Of  such  general  imparl- 

Co)2Chitty,  473. 

(p)  Booth,  36;  Com.  Dig.,  Pleader,  D.  L 

C«)  8  Bl.  Com.  299. 

(r)  Supra,  p.  148. 

(«)  Com.  Dig.,  Pleader,  D.  2. 

1  See  McCormick  v.  Rusch,  15  la.  127. 


§  112.]  PROCEEDINGS   IN    AN    ACTION.  207 

ance  it  was  a  consequence  that  the  defendant  was  afterwards 
precluded  from  certain  proceedings  of  a  dilatory  tendency, 
which  might  before  have  been  competent  to  him.  Thus  he 
could  not,  after  a  general  imparlance,  demand  oyer,  (t)  nor 
(according  to  some  authorities)  a  view,  (it)  nor  could  he  plead 
a  plea  to  the  jurisdiction  or  in  abatement,  (so)  Accordingly,  if 
he  wished  to  preserve  his  right  to  these  advantages,  he  varied 
the  form  of  his  prayer,  and  made  it  with  a  reservation  of  such 
right.  If  his  object  was  to  preserve  the  right  of  pleading  in 
<ibat6trient,  he  prayed  what  is  called  a  special  imparlance.  The 
nature  of  the  imparlance,  general  and  special^  will  more  fully 
appear  by  examples  of  the  style  in  which  this  kind  of  con- 
tinuance was  entered  on  the  record. 

ENTET  OF  GENERAL  IMPARLANCE. 

To  the  declaration. 

(In  the  King's  Bench,  by  original.) 
[After  the  entry  of  the  declaration  the  record  proceeds  thus:] 

And  the  said  C.  D.,  by ,  his  attorney,  comes  and 

defends  the  wrong  and  injury  when,  etc.,  and  prays  a  day 
thereupon  to  iraparl  to  the  said  declaration  of  the  said  A.  B., 
and  it  is  granted  to  him,  etc.  And  upon  this  a  day  is  given 
to  the  parties  aforesaid,  before  our  lord  the  king,  until  the 
Morrow  of  All  Souls,  wheresoever,  etc.,  that  is  to  say,  for  the 
said  C.  D.  to  imparl  to  the  declaration  aforesaid,  and  then  to 
answer  the  same,  (y) 

ENTRY   OF   SPECIAL   IMPARLANOE. 

To  the  declaration. 

(In  the  King's  Bench,  by  original.) 

[After  the  entry  of  the  declaration  the  record  proceeds  thus:"] 
And  the  said  C.  D.,  in  his  proper  person,  comes,  and,  saving 
to  himself  all  advantages  and  exceptions,  as  well  to  the  writ 
as  to  the  declaration  aforesaid,  prays  leave  to  imparl  there- 
unto here  until,  etc.  And  it  is  granted  to  him,  etc.  The 
same  day  is  given  to  the  said  A.  B.  here,  etc.  (s) 

(f)  2  Saund.  b,  n.  2. 

(w)  2  Saund.  45,  2;  Booth,  39. 

(x)  Com.  Dig.,  Abatement,  L  20;  2  Saund.  2,  n.  2. 

(»)  2  Cbitty,  405.  See  the  form  in  common  pleas,  Booth,  36.  In  proceedings  by  WZl  in 
king's  bench  there  was  no  formal  entry  of  a  prayer,  but  a  short  notice  on  the  record  retro- 
spectively that  an  imparlance  had  been  granted.  Cuitty,  id. 

(z)  2  Chitty,  407.  See  the  form  in  proceeding  by  bill  in  king's  bench.  Lib.  Plao.  8, 
1>1.  15;  2  Saund.  2,  n.  2. 


208  CAUSES   AND    FORMS    OF   ACTION.  [§  112. 

The  latter  form  would  entitle  the  party  to  plead  in  abate- 
ment afterwards,  but  not  to  the  jurisdiction;  and  therefore, 
if  he  wished  to  preserve  the  power  of  doing  this  also,  he  re- 
sorted to  another  kind  of  special  imparlance,  differing  from 
the  former  only  in  this,  that  it  contained  a  saving  of  "all  ad- 
vantages and  exceptions  whatsoever."  (a)  This  is  called  in 
the  books  a  general  special  imparlance;  and  it  would  seem 
that  the  effect  of  an  imparlance  of  this  description  is  to  pre- 
serve the  power,  not  only  of  pleading  all  dilatory  pleas,  but 
of  demanding  oyer  and  a  view,  (b) 

The  law  and  practice  on  the  subject  of  imparlance  still  re- 
mains in  the  same  state  as  here  described,  subject  to  the  fol- 
lowing remarks : 

By  the  practice  of  the  present  day,  a  party  is  either  obliged 
to  answer  the  last  antecedent  pleading  in  the  same  term,  or  is 
entitled,  as  of  course,  to  an  imparlance  to  the  next  term, 
according  to  the  period  of  the  existing  term,  at  which  it  be- 
comes his  turn  to  plead,  and  the  course  of  the  previous  pro- 
ceedings. The  rules  on  this  subject  are  too  various,  and 
merely  practical,  to  be  here  stated.  An  imparlance,  when  not 
grantable  as  of  course,  may  yet  be  obtained  upon  application, 
for  some  particular  cause,  at  the  discretion  of  the  court. 

When  an  imparlance  is  grantable  as  of  course,  and  a  general 
imparlance  will  suffice,  no  actual  prayer  or  application  for  it 
is  now  made,  but  the  party  entitled  takes  the  imparlance  for 
himself,  by  suspending  his  pleading  till  the  next  term.  And 
on  a  general  imparlance,  no  notice  of  the  proceeding  is  usually 
taken  in  the  pleadings  filed  and  delivered  between  the  par- 
ties, (c)  But  if  the  defendant,  being  entitled  as  of  course  to 
an  imparlance,  wishes,  at  the  same  time,  to  preserve  his  right 
of  pleading  dilatory  pleas  and  taking  other  advantages,  and 
consequently  to  obtain  a  special  or  general  special  imparlance, 
he  must  make  an  actual  application  to  the  court  (d)  for  this 
purpose ;  and  where  a  special  or  general  special  imparlance  is 
thus  obtained,  the  defendant  makes  an  entry  of  it  in  his  plea 

(a)  2  Saund.  2,  n.  2. 
(6)  Vide  1  Chitty,  418. 

(c)  1  Chitty,  421. 

(d)  But  the  special  Imparlance  in  the  common  pleas  may  be  granted  by  the  prothono 
tary.    2  Saund.  2,  note  2. 


§  113.]  PROCEEDINGS   IN   AN   ACTION.  209 

filed  or  delivered,  (e)  This  is  done  exactly  in  the  form  of  the 
ancient  entry  on  record ;  (/")  and  it  stands  as  a  commence- 
ment to  his  plea. 

These  and  other  incidents  of  a  similar  kind  may  occur  in 
pleading.  If  they  take  their  course  without  opposition,  they 
do  not,  as  we  have  seen,  long  interrupt  the  main  series  of  the 
allegations.  But,  with  respect  to  most  of  them,  the  opposite 
party  has  a  right,  if  he  pleases,  to  oppose  the  prayer  made  on 
the  other  side ;  and  for  this  purpose  he  was  entitled,  in  the 
ancient  practice  of  pleading,  to  demur  or  plead  to  it,  as  if  it 
were  a  statement  of  fact  made  in  the  direct  course  of  the 
pleading.  Thus,  if  a  part}7  demanded  oyer  in  a  case  where, 
upon  the  face  of  the  pleading,  his  adversary  conceived  it  to 
be  not  demandable,  the  latter  might  demur;  (g)  or,  if  he  had 
any  matter  of  fact  to  allege  as  a  ground  why  the  oyer  could 
not  be  demanded,  he  might  plead  such  matter.  (A)  If  he 
pleaded,  the  allegation  was  called  a  counter-plea  to  tlie  oyer. 
So  the  demandant  might  have  occasion  in  the  same  manner 
to  counterplead  the  voucher,  or  counterplead  the  view;  all 
pleadings  of  this  incidental  kind,  diverging  from  the  main  se- 
ries of  the  allegations,  being  termed  counter-pleas.  (*)  And 
in  the  latter  instances,  as  well  as  upon  oyer,  it  would  seem 
there  might  be  demurrer  instead  of  counterplea,  if  the  objec- 
tion appeared  on  the  face  of  the  proceedings.  Again,  on  the 
counter-plea,  in  all  these  cases,  there  might  happen  to  be  a 
replication,  and  other  subsequent  pleadings,  and  so  the  parties 
might  come  to  issue  in  law,  or  in  fact,  on  this  collateral  sub- 
ject, in  the  same  manner  as  upon  the  principal  matters  in  con- 
troversy. It  is  to  be  observed,  however,  that  these  collateral 
or  incidental  pleadings,  though  according  to  the  principle  of 
the  science  they  may  occur,  have  now  fallen  into  complete 
disuse  in  point  of  practice.  (&) 

§  113.  Making:  up  the  issue. —  Supposing  the  cause  to  be  at 
issue,  the  next  proceeding  is  to  make  a  transcript  upon  paper 
of  the  whole  pleadings  that  have  been  filed  or  delivered  be- 

(e)  2  Chitty,  423;  2  Saund.  2,  note  2. 
(/)  As  in  the  example  supra,  p.  207. 
(g)  1  Saund.  9  b,  n.  1. 

(h)  Id. 

(f)  In  Keg.  Plac.  118,  counter-plea  is  defined  to  be  "a  kind  of  replication." 

(fc)  See  an  example  of  an  issue  upon  counter-plea  to  the  voucher  in  Formedon,  Bro.  Ent. 
174. 


210  CAUSES   AND  FORMS    OF   ACTION.  [§  113. 

tween  the  parties.  This  transcript,  when  the  issue  joined  is- 
an  issue  at  law,  is  called  the  demurrer-look;  when  an  issue  in 
fact,  it  is  called  in  the  king's  bench,  in  some^  cases,  the  issue; 
in  others,  the  paper-look/  and  in  the  common  pleas,  the  issue. 
It  contains  not  only  the  pleadings,  but  also  entries,  according 
to  the  ancient  forms  used  in  recording,  (I)  of  the  appearance 
of  the  parties,  the  continuances,  and  other  acts  supposed  to  be 
done  in  court,  up  to  the  period  of  issue  joined,  even  though  such 
entries  have  not  formed  part  of.  the  pleadings  as  filed  and  deliv- 
ered ;  and  it  concludes  with  an  entry  of  an  award  by  the  courtt 
of  the  mode  of  decision  tendered  and  accepted  by  the  pleadings. 
The  making  of  this  transcript,  upon  an  issue  in  law,  is  called 
making  up  the  demurrer-look;  upon  an  issue  in  f act,  making  up 
the  issue  or  paper-look.  The  demurrer-book,  issue  or  paper- 
book,  when  made  uj>,  is  delivered  to  the  defendant's  attorney, 
who,  if  it  contains  what  he  admits  to  be  a  correct  transcript,  re- 
turns it  unaltered ;  but  if  it  varies  from  the  pleadings  that  were 
filed  or  delivered,  he  makes  application  to  the  court  to  have 
it  set  right,  (m) l  Before  dismissing  the  subject  of  this  tran- 
script, it  will  be  proper  to  notice  the  following  point  of  prac- 
tice with  respect  to  the  manner  in  which  the  demurrer-book, 
issue  or  paper-book  is  made  up  and  delivered.  "Whenever  the 
defendant  demurs  or  traverses  with  a  conclusion  to  the  country 
(that  is,  with  an  offer  of  trial  ly  jury),  instead  of  returning  a 
regular  joinder  in  demurrer  or  similiter  on  the  part  of  the 
plaintiff  before  making  up  the  demurrer-book,  issue  or  paper- 
book,  in  the  manner  formerly  described,  (n)  the  usual  course, 
in  a  view  to  expedite  the  proceedings,  is  to  make  up  and  de- 
liver to  the  defendant  the  demurrer-book,  issue  or  paper-book 
at  once ;  inserting  in  it,  however,  a  joinder  in  demurrer  or  a 
similiter  for  the  plaintiff,  (o)  And  this,  in  the  case  of  an  issue 
in  fact,  is  done,  not  in  the  full  and  regular  form  of  a  joinder 
in  issue  (as  formerly  given),  (p)  but  in  the  following  abbrevi- 
ated style,  viz. :  "  And  the  said  A.  B.  does  the  like."  Again, 
whenever  the  plaintiff  demurs  or  traverses,  concluding  to  the 

(I)  Vide  supra,  p.  149. 

(tn.)  Shepley  v.  Marsh,  Str.  118L 

(n)  Supra,  pp.  193, 194. 

(o)  1  Arch.  Pract.  131. 

(p)  Supra,  p.  194. 

*See  Thynne  v.  Woodman,  2  Tyrw.  495. 


§  114.]  PROCEEDINGS    IN    AN   ACTION.  211 

country,  the  demurrer-book,  issue  or  paper-book  is,  in  like 
manner,  made  up  at  once  and  delivered  to  the  defendant,  with 
a  joinder  in  demurrer  or  similiter  inserted  for  him,  the  simili- 
ter  being  in  the  same  abbreviated  form :  "  And  the  said  C.  D. 
does  the  like."  The  defendant,  however,  having  an  option 
(as  above  explained)  (^)  with  respect  to  the  joinder  in  issue,  is 
of  course  entitled,  if  he  pleases,  to  strike  out  the  similiter  and 
demur. 

During  the  course  of  the  pleading,  if  either  party  perceives 
any  mistake  to  have  been  committed  in  the  manner  of  his 
allegation,  or  if,  after  issue  joined  on  demurrer  for  matter  of 
form,  he  should  think  the  issue  likely  to  be  decided  against 
him,  he  ought  to  apply  without  delay  for  leave  to  amend. 
It  is  proper,,  therefore,  now  to  take  some  notice  of  the  law  of 
amendment. 

§  114.  Of  amendments. —  Under  the  ancient  system  the  par- 
ties were  allowed  to  correct  and  adjust  their  pleadings  during 
the  oral  altercation,  and  were  not  held  to  the  form  of  state- 
ment that  they  might  first  advance,  (r)  So  at  the  present 
day,  until  the  judgment  is  signed  (s)  in  the  manner  to  be  after- 
wards mentioned,  either  party  is,  in  general,  at  liberty  to 
amend  his  pleading  as  at  common  law;  the  leave  to  do  which 
is  granted  as  of  course,  (t)  upon  proper  and  reasonable  terms, 
including  the  payment  of  the  costs  of  the  application,  and 
sometimes  the  whole  costs  of  the  cause  up  to  that  time.1 
And  even  after  the  judgment  is  signed,  and  up  to  the  latest 
period  of  the  action,  amendment  is,  in  most  cases,  allowable 
at  the  discretion  of  the  court,  under  certain  statutes  passed  for 
allowing  amendments  of  the  record ;  and  in  late  times  the 

(q)  Supra,  p.  193. 

(r)  2  Reeves,  849;  Rush  v.  Seymour,  10  Mod.  88. 

(8)  2  Arch.  Pract.  231. 

(t)  Rush  v.  Seymour,  10  Mod.  88;  2  Tidd,  642,  4th  ed.  But  not  as  of  course  in  a  real  ac- 
tion. And,  in  general,  the  court  will  not  allow  an  amendment  hi  an  action  of  that  class 
1  Tidd,  644,  4th  ed.;  Dumsday  v.  Hughes,  8  Bos.  &  PuL  463;  Charlwood  v.  Morgan,  1  X.  R. 
64,  233;  Hull  v.  Blake,  4  Taunt.  572. 

1  The  proper  practice  is  to  present  cannot  amend  so  as  to  change  cause 
a  proposed  amendment  when  leave  of  action  entirely.  Sears  v.  Mortgage 
to  file  it  is  asked,  but  the  court,  in  its  Loan  Co.,  56  Mo.  App.  122.  Amend- 
discretion,  may  give  leave  to  amend  merits  may  be  made  in  pleadings  by 
at  a  future  time.  McFarland  v.  Clay-  inserting  jurisdictional  facts.  Mitch- 
pool,  128  III  398 ;  Ridgely  Nat  Bank  ell  v.  Railroad  Co.,  82  Ma  106. 
v.  Fairbank,  54  111.  App.  296.  One 


212  CAUSES    AND   FORMS   OF   ACTION.  [§  115. 

judges  have  been  much,  more  liberal  than  formerly  in  the  ex- 
ercise of  this  discretion.  Amendments  are,  however,  always 
limited  by  due  consideration  of  the  rights  of  the  opposite 
party;  and  where,  by  the  amendment,  he  would  be  prejudiced 
or  exposed  to  unreasonable  delay,  it  is  not  allowed.1 

§115.  Entering  the  issne. —  To  return  to  the  main  course 
of  proceeding.  The  pleadings  and  issue  being  adjusted  by  the 
making  up,  delivery  and  return  of  the  demurrer-book,  issue 
or  paper  book,  the  next  step  is  to  enter  the  issue  on  record.  It 
will  be  remembered  that  the  pleadings  are  framed  as  if  they 
were  copied  from  a  roll  of  the  oral  pleadings.  Such  a  roll  (as 
has  been  shown)  (u)  did,  in  the  time  of  oral  pleading,  exist, 
and  still  exists  in  contemplation  of  law ;  but  no  roll  is  now 
actually  prepared  or  record  made  till  after  issue  joined  and 
made  up  in  manner  above  described.  At  that  period,  how- 
ever, a  record  is  drawn  up  on  a  parchment  roll.  This  pro- 
ceeding is  called  entering  the  issue,  and  the  roll  on  which  the 
entry  is  made  is  called  the  issue  roll.  The  issue  roll  contains 
an  entry  of  the  term  of  which  the  demurrer-book,  issue  or 
paper  book  is  entitled,  and  the  warrants  of  attorney  supposed 
to  have  been  given  by  the  parties  at  the  commencement  of 
the  cause,  authorizing  their  attorneys  to  appear  for  them,  re- 
spectively ;  (a?)  and  then  proceeds  with  a  transcript  of  the  dec- 
laration and  subsequent  pleadings,  continuances  and  award  of 
the  mode  of  decision,  as  contained  in  the  demurrer-book,  issue 
or  paper-book.  "When  drawn  up  it  is  filed  in  the  proper  office 
of  the  court,  (y)  Of  the  manner  of  thus  entering  the  issue  on 
record  the  following  are  examples: 

(u)  Supra,  pp.  14&-150.    Et  vide  Sel.  IntrOd.,  bdy. 

(a;)  2  Tidd,  670;  Impey,  C.  P.  863;  and  vide  supra,  p.  149. 

(y)  2  Tidd,  670,  671;  1  Sel.  335,  403.  Such  is  the  course  of  proceeding  when  strictly  and 
formally  pursued.  But  with  respect  to  an  issue  in  fact  the  statement  is  not  quite  practi- 
cally true,  it  being  the  general  practice  not  to  complete  the  issue  roll  hi  that  case  by  tran- 
scribing the  whole  of  the  proceedings  into  it,  but  to  enter  only  what  is  called  an  incipitur, 
that  is,  the  mere  commencement  or  initial  words  of  the  issue  or  paper-book.  Tidd,  671 ; 
Impey,  C.  P.  403.  It  did  not  seem  worth  while  to  embarrass  the  statement  in  the  teyt  by 
noticing  this  circumstance. 

i  Koch  v.  Both,  150  III  212.  The  tant  that  it  is  thought  best  to  insert 
subject  of  amendments  is  so  impor-  a  note  to  the  author's  note  33,  App. 


§-115.]  PROCEEDINGS   IN   AN    ACTION.  213 

ENTRY   OF  ISSUE. 

On  Demurrer. 

With  an  imparlance. 

(In  the  King's  Bench  —  by  original. — 

In  an  action  of  covenant.) 

As  yet  of Term,  in  the  year  of 

the  reign  of  King  George  the  Fourth. 
"Witness  Sir  Charles  Abbott,  Knight. 

,  to  wit,  A.  B.  puts  in  his  place  E.  F.,  his  attorney, 

against  C.  D.,  in  a  plea  of  breach  of  covenant. 

,  to  wit,  C.  D.  puts  in  his  place  G.  H.,  his  attorney,  at 

the  suit  of  the  said  A.  B.,  in  the  plea  aforesaid. 

,  to  wit,  C.  D.  was  summoned  to  answer  (as  in  the  dec- 
laration, supra,  p.  158). 

And  the  said  C.  D.,  by ,  his  attorney,  comes  and 

defends  the  wrong  and  injury  when,  etc.,  and  prays  a  day 
thereupon  to  imparl  to  the  said  declaration  of  the  said  A.  B.  ; 
and  it  is  granted  to  him,  etc.  And  upon  this  a  day  is  given 

to  the  parties  aforesaid,  before  our  lord  the  king,  until , 

wheresoever,  etc.,  that  is  to  say,  for  the  said  C.  D.  to  im- 
parl to  the  declaration  aforesaid,  and  then  to  answer  the  same. 
At  which  day,  before  our  said  lord  the  king  at  "Westminster, 
come  the  parties  aforesaid,  by  their  attorneys  aforesaid ;  and 
the  said  C.  D.  says  that  the  said  A.  B.  ougfit  not  to  have  or 
maintain  (etc.,  as  in  ike  plea,  supra,  p.  160). 

And  the  said  A.  B.  says  that,  by  reason  of  anything  in  the 
said  plea  alleged,  he  ought  not  to  be  barred  (etc.,  as  in  the 
replication,  supra,  p.  197). 

And  the  said  C.  D.  says  that  the  said  replication  of  the  said 
A.  B.  to  the  said  plea  of  him,  the  said  C.  D.,  and  the  matters 
therein  contained,  in  manner  and  form  as  the  same  are  above 
pleaded  and  set  forth,  are  not  sufficient  in  law  (etc.,  as  in  the 
demurrer,  supra,  p.  198). 

And  the  said  A.  B.  says  that  the  said  replication  and  the 
matters  therein  contained,  in  manner  and  form  as  the  same 
are  above  pleaded  and  set  forth,  are  sufficient  in  law  for  him, 
the  said  A.  B.,  to  have  and  maintain  his  aforesaid  action 
against  the  said  C.  D.  And  the  said  A.  B.  is  ready  to  verify 
«md  prove  the  same,  as  the  court  here  shall  direct  and  award. 
"Wherefore,  inasmuch  as  the  said  C.  D.  hath  not  answered  the 
said  replication,  nor  hitherto  in  any  manner  denied  the  same, 
the  said  A.  B.  prays  judgment,  and  his  damages  by  him  sus- 
tained by  reason  of  the  said  breach  of  covenant,  to  be  ad- 
judged to  him.  But  because  the  court  of  our  lord  the  king, 
now  here,  are  not  yet  advised  (2)  what  judgment  to  give  of 

GO  This  concluding  part  of  the  entry,  beginning  But  because,  etc.,  is  called  an  entry  of 
curia  advisare  vult,  which  were  the  words  used  when  the  record  was  in  Latin.  It  is  an 
award  of  the  mode  of  decision,  viz.:  that  by  the  judgment  of  the  court.  This,  as  well  as 
the  knparlance,  is  one  of  the  kinds  of  continuance;  as  to  which,  vide  supra,  pp.  148-206. 


214  CAUSES    AND   FOKMS   OF   ACTION.  [§  115, 

and  upon  the  premises,  a  day  is  given  to  the  parties  aforesaid 

before  our  lord  the  king,  on ,  wheresoever,  etc.,  to  hear 

judgment  thereon,  for  that  the  said  court  of  our  lord  the  king 
now  here  are  not  yet  advised  thereof,  (a) 

ENTRY   OF   ISSUE. 

On  an  Issue  in  Pact  to  be  tried  by  a  Jury. 

Without  an  imparlance. 

(In  the  King's  Bench  —  by  original. — 

In  an  action  of  covenant.) 

As  yet  of Term,  in  the year  of  tha 

reign  of  King  George  the  Fourth.  Witness, 
Sir  Charles  Abbott,  Knight. 

to  wit,  A.  B.  puts  in  his  place  E.  F.,  his  attorney, 

against  C.  D.,  in  a  plea  of  breach  of  covenant. 

to  wit,  0.  D.  puts  in  his  place  G.  H.,  his  attorney,  at 

the  suit  of  the  said  A.  B.,  in  the  plea  aforesaid. 

to  wit,  0.  D.  was  summoned  to  answer  (as  in  the  dec- 
laration, supra,  p.  158). 

And  the  said  0.  D.,  by ,  his  attorney,  comes  and 

defends  the  wrong  and  injury,  when,  etc.,  and  says  (as  in  the 
plea,  supra,  p.  189). 

And  the  said  A.  B.  says  that,  by  reason  of  anything  in  the 
said  plea  alleged,  he  ought  not  to  be  barred  from  having  and 
maintaining  his  aforesaid  action  against  the  said  C.  D.,  because 
he  says  (as  in  the  replication,  supra,  p.  197). 

And  the  said  C.  D.  saith  that,  by  reason  of  anything  in  the 
said  replication  alleged,  the  said  A.  B.  ought  not  to  have  or 
maintain  his  aforesaid  action  against  him,  the  said  C.  D.,  be- 
cause he  says  (as  in  the  rejoinder,  supra,  p.  197). 

And  the  said  A.  B.  does  the  like.  (5)  Therefore  it  is  com- 
manded to  the  sheriff  (o)  that  he  cause  to  come  before  our 

lord  the  king,  on  ,  wheresoever  our  said  lord  the  king 

shall  then  be  in  England,  twelve,  etc.,  by  whom,  etc.,  and  who 
neither,  etc.,  to  recognize,  etc.,  because  as  well,  etc.  The  same 
day  is  given  to  the  parties  aforesaid,  etc.  (d) 

The  action  being  now  brought  to  that  stage  at  which  the 
issue  is  recorded,  the  next  subject  for  consideration  is  the 
manner  in  which  the  issue  is  decided. 

(a)  For  the  form  of  entering  the  issue,  as  above  given,  see  Tidd's  .Appendix,  chs.  TTTJ, 
rxxix;  1  Arch.  Pract.  134. 

(b)  As  to  this  abbreviated  form  of  the  similiter,  see  supra,  p. 

(c)  The  concluding  clause,  beginning,  Therefore  it  it  commanded,  etc.,  is  an  entry  of 
the  award  of  the  mode  of  decision.    Where  this  is  by  Jury,  the  award  is  that  of  a  writ  of 
venire  facias  to  summon  a  jury;  to  which  the  language  of  the  above  entry  refers. 

(d)  For  the  form  of  entering  the  issue,  as  above  given,  see  Tidd's  Appendix,  chs.  xxxi, 
xxxix;  1  Arch.  Pract.  134. 


§§  116-118.]  PROCEEDINGS   IN   AN   ACTION.  215- 

§116.  The  decision  of  issues  in  law  is  vested  (as  it  always 
has  been)  (e)  exclusively  in  the  judges  of  the  court.  There- 
fore when,  upon  a  demurrer,  the  issue  in  law  has  been  en- 
tered on  record  in  the  manner  above  described,  it  is  entered 
for  argument  —  that  is,  set  down  to  be  argued  in  court  on  a 
day  appointed  for  the  purpose.  On  that  day,  or  as  soon  after- 
wards as  the  business  of  the  court  will  permit,  it  is  accordingly 
argued  viva  voce,  in  court,  by  the  respective  counsel  for  the 
parties;  and  the  judges,  in  the  same  manner  and  place,  pro- 
nounce their  decision  according  to  the  majority  of  voices. 

The  manner  of  deciding  issues  in  fact  will  require  explana- 
tion at  greater  length. 

§  117.  Trial  of  issues  in  fact. —  The  decision  of  the  issue  in 
fact  is  called  the  trial,  (f)  The  different  methods  of  trial 
now  in  force  are  the  following:  The  trial  by  jury,  by  the  grand 
assize,  by  the  record,  by  certificate,  by  witnesses,  by  inspection, 
and  by  wager  of  law.  (g) 

These  occur,  however,  in  very  different  degrees  of  frequency 
in  practice.  Every  mode  of  trial  except  that  by  jury  is  of 
rare  admissibility;  being  not  only  confined  to  a  few  questions 
of  a  certain  nature,  but  in  general  also,  if  not  universally, 
to  such  questions  when  arising  in  a  certain  form  of  issue,  (h) 
And  to  all  issues  not  thus  specially  provided  for,  the  trial  by 
jury  applies,  as  the  ordinary  and  only  legitimate  method,  (i) 
On  the  other  hand,  however,  it  is  to  be  observed,  with  respect 
to  these  occasional  modes  of  trial,  that,  when  competent,  they 
are  in  general  exclusively  appropriate;  so  that  the  party  by 
whom  they  are  proposed  in  the  pleading  has  a  right  to  insist 
on  their  being  applied,  to  the  exclusion  of  the  trial  by  jury. 

§  118.  Trial  by  jury. —  First  shall  be  considered  the  ordinary 
method,  or  trial  by  jury. 

It  will  be  remembered  that  when  the  parties  have  mutually 
referred  the  issue  to  decision  by  a  jury,  or  (as  it  is  technically 
termed)  have  put  themselves  upon  the  country,  there  is  entered 
upon  the  roll  (as  in  all  other  cases)  the  award  of  the  mode  of 

(e)  Supra,  p.  147. 
(/)  See  Appendix,  note  (30). 

(g)  Vide  3  Bl.  Com.  330,  where  the  enumeration  is  the  same;  with  only  the  nominal  dif- 
ference that  the  grand  assize  is  there  classed  as  a  species  of  trial  by  jury. 
(70  Vide  Cro.  Jac.  102. 
(t)  Ilderton  v.  nderton,  2  H.  BL  146. 


216  CAUSES   AND   FOKMS   OF   ACTION.  [§  118. 

decision  adopted.  In  the  case  of  the  trial  by  jury,  that  award 
directs  the  issuing  of  the  writ  of  venire  facias,  commanding 
the  sheriff  of  the  county  where  the  facts  are  alleged  by  the 
pleading  to  have  occurred,  to  summon  a  jury  to  try  the 
issue;  (&)  and  such  writ  is  accordingly  sued  out.  The  follow- 
ing is  an  example  of  its  modern  form : 

VENIBE  FACIAS. 
Upon  the  issue,  supra,  p.  214. 

George  the  Third,  etc.,  to  the  Sheriff  of ,  Greeting: 

We  command  you  that  you  cause  to  come  before  us,  on 

,  wheresoever  we  shall  then  be  in  England,  twelve  free 

and  lawful  men  of  the  body  of  your  county,  each  of  whom 
has  ten  pounds  a  year  at  the  least  of  lands,  tenements  or  rents, 
by  whom  the  truth  of  the  matter  may  be  better  known,  and 
who  are  in  no  wise  of  kin  either  to  A.  B.,  the  plaintiff,  or  to 
C.  D.,  late  of ,  Esquire,  the  defendant,  to  make  a  cer- 
tain jury  of  the  country  between  the  parties  aforesaid  of  a 
plea  of  breach  of  covenant,  because  as  well  the  said  C.  D.  as 
the  said  A.  B.,  between  whom  the  matter  in  variance  is,  have 
put  themselves  upon  that  jury ;  and  have  there  the  names  of 
the  jurors  and  this  writ. 

"Witness,  Sir  Charles  Abbott,  Knight,  at  Westminster,  the 
day  of in  the year  of  our  reign.  (I) 

The  venire  facias,  it  will  be  observed,  directs  the  jury  to  be 
summoned  to  appear  in  the  superior  court.  This  is  because 
the  trial  was  in  fact  anciently  had  there.  But,  except  in  some 
few  cases  to  be  presently  noticed,  the  trial  by  jury  no  longer 
takes  place  before  the  superior  court.  It  is  now  usually  con- 
ducted in  the  county  where  the  facts  are  alleged  in  pleading 
to  have  occurred  and  into  which  the  venire  facias  issues;  and 
before  certain  judges  called  the  justices  of  assize  and  nisi 
prius.  The  trial  is  in  such  cases  said  to  be  had  at  nisi 
prius;  (m)  and  when  it  is  to  be  so  had,  the  course  of  proceed- 
ing is,  after  an  issue  to  be  tried  by  jury  has  been  entered  on 
record  on  the  issue  roll,  to  sue  out  the  venire  facias,  to- 
gether with  another  writ,  for  compelling  the  attendance  of 
the  jury,  called  the  distringas  in  the  king's  bench,  in  the  com- 
mon pleas  the  haleas  corpora.  The  next  step  is  to  make  up 

(K)  Vide  the  form  of  this  award,  supra,  p,  214. 
0)  TidiTs  Appendix,  208. 
(w)  See  Appendix,  note  (31). 


PROCEEDINGS   IN   AN   ACTION. 


217 


and  pass,  at  the  proper  offices,  another  record  on  a  parchment 
roll,  called  the  record  of  nisi  prius;  which  is  a  transcription 
from  the  issue-roll,  (ri)  and  contains  a  copy  of  the  pleadings 
and  issue.  This  nisi  prius  record  is  then  delivered  to  the 
judges  of  assize  and  nisi  prius,  and  serves  for  their  guidance 
as  to  the  nature  of  the  issue  to  be  tried.  The  trials  at  nisi 
priiis  now  take  place  in  London  and  Middlesex,  several  times 
in  the  course  of  each  term,  and  also  during  a  considerable 
part  of  each  vacation ;  in  every  other  county,  they  are  held 
twice  a  year,  and  always  in  time  of  vacation.  The  justices  of 
assize  and  nisi  prius,  for  trials  in  London  and  Middlesex,  con- 
sist of  the  chief  justices  of  the  three  courts  respectively, — 
each  trying  only  the  issues  from  his  own  court.  For  trials  in 
the  other  counties,  they  consist  of  such  persons  as  are  ap- 
pointed for  the  purpose,  by  temporary  commission  from  the 
crown ;  among  whom  are  usually  for  each  circuit  two  of  the 
judges  of  the  superior  courts ;  the  whole  kingdom  being  di- 
vided into  six  circuits  for  the  purpose. 

§119.  Trial  by  jury. —  Though  the  trial  by  jury  is  thus  in 
general  had  at  nisi  prius,  this  is  not  universally  the  case ; 
for  in  cases  of  great  difficulty  and  consequence,  these  inquests 
are  allowed  to  be  taken  before  the  four  judges  in  the  superior 
court  in  which  the  pleading  took  place, —  as  in  the  ancient 
practice.  The  proceeding  is  then  technically  said  to  be  a  trial 
at  lar,  by  way  of  distinction  from  the  trial  at  nisi  prius.1 

After  these  explanations  as  to  the  time  and  place  of  trial 
by  jury,  the  next  subject  for  consideration  is  the  course  of  the 
proceeding  itself. 


(n)  2  Tidd,  700. 

1  Trials  of  issues  in  fact  by  the 
court  is  a  very  usual  mode  of  trial  at 
the  present  day ;  and  in  order  to  make 
it  appear  upon  the  record  whether 
the  trial  judge  was  basing  his  conclu- 
sion upon  a  certain  finding  of  fact  or 
an  erroneous  view  of  law,  the  prac- 
tice is  to  submit  to  him  propositions 
of  law.  In  this  manner  the  facts  are 
separated  from  the  law,  and  the  ques- 
tions both  of  law  and  fact  may  be 
argued  in  the  appellate  tribunal.  If 


such  propositions  are  not  asked,  the 
presumption  is  indulged  that  the 
court  held  the  facts  against  the  de- 
feated party  under  a  correct  view  of 
the  law.  These  propositions  should 
be  propositions  of  law,  not  of  fact, 
as  the  finding  will  be  upon  the  fact 
Field  v.  Crawford,  146  DL  136 ;  Com- 
mercial Nat  Bank  v.  Cannif  (III, 
1894),  87  N.  E.  Rep.  898;  Am.  Ex. 
Bank  v.  Chicago  Nat  Bank,  131  III 
647. 


218  CATJSES    AND,  FORMS    OF   ACTION.  [§  119 

The  whole  proceeding  of  trial  by  jury  takes  place  under  the 
superintendence  of  the  presiding  judge  or  judges,  who  usually 
decide  all  points  as  to  the  admissibility  of  evidence,  and  di- 
rect the  jury  on  all  such  points  of  law  arising  on  the  evidence 
as  is  necessary  for  their  guidance  in  appreciating  its  legal 
effect,  and  drawing  the  correct  conclusion  in  their  verdict.1 

After  hearing  the  evidence  of  the  witnesses,  the  addresses 
of  counsel,  and  the  charge  of  the  judge,  the  jury  pronounce 
their  verdict;  which  the  law  requires  to  be  unanimously  given. 
The  verdict  is  usually  in  general  terms,  "  for  the  plaintiff,"  or 
"for  the  defendant;"  finding  at  the  same  time  (in  case  of 
verdict  for  the  plaintiff,  and  where  damages  are  claimed  by 
the  action)  the  amount  of  damages  to  which  they  think  him 
entitled. 

The  principles  upon  which  the  law  requires  the  jury  to  form 
their  decision  are  as  follows : 

1.  They  are  to  take  no  matter  into  consideration  but  the 
question  in  issue;  for  it  is  to  try  the  issue,  and  that  only,  that 
they  are  summoned.2    Thus,  upon  pleadings  such  as  are  re- 
corded in  the  issue  roll  (supra,  p.  214:),  they  would  only  have  to 
consider  whether  the  release  was  executed  by  duress  or  not. 
Of  the  execution  of  the  indenture  of  lease  they  could  not  in- 
quire ;  for  it  is  not  ^n  issue. 

2.  They  are  bound  to  give  their  verdict  for  the  party  who, 
upon  the  proof,  appears  to  them  to  have  succeeded  in  estab- 

1See  Eastman  v.  Manufacturing  dence  adduced,  and  to  declare  the 

Co.,  44  N.  H.  143,  82  Am.  Dec.  201 ;  respective  rights  of  the  parties  as  in- 

Deming  v.  Foster,  42  N.  H.  165.  volved  in  the  issue  with  certainty,  so 

2  Nothing  but  the  immediate  ques-  that  the  judgment  can  be  entered 

tion  in  issue  is  settled  by  the  verdict  with  like  certainty,  and  the  ministe- 

McGinnis  v.  Canada  South.  Bridge  rial  officers  can  carry  it  into  execution 

Co.,  49  Mich.  466.    Without  an  issue  a  without  determining  additional  facts, 

verdict  is  void.    Stephens  v.  People,  13  Barnet  v.  Caruth,  20  Tex.  173 ;  Staf- 

111.131;  Israel  v.Reynolds,  11  id.  2 18;  ford  v.  King,  30  id.  257.    See,  also, 

Reynolds  v.  Stockton,  140  U.  S.  254.  Patterson  v.  United  States,  2  Wheat 

The  statement  in  Thompson  on  Trials,  221;  Brockway  v.  Kinney,  2  Johns, 

section  2310,  if  intended  to  state  that  210 ;  Groves  v.  Bailey,  24  Miss.  588. 

the  jury  or  court  may  try  anything  Gross   v.    Sloan,   54    111.  App.  202; 

beyond  the  issue,  is  not  supported  by  Moody  v.  Keener,  7  Port  (Ala.)  218 ; 

authority.    The  object  of  the  verdict  Ronge  v.  Dawson,  9  Wis.  246 ;  Hob. 

is  to  respond  to  and  decide  the  issues  -  53. 
between  the  parties  upon  the  evi- 


§§  120,  121.]  PROCEEDINGS  IN    AN   ACTION. 


lishing  his  side  of  the  issue.1  Thus,  in  the  same  example,  the 
rerdict  must  be  given  for  the  plaintiff,  if  the  jury  think  the 
duress  is  established  in  proof;  otherwise,  for  the  defendant. 

§  120.  Burden  of  proof. —  3.  The  burden  of  proof  generally 
is  upon  that  party  who,  in  pleading,  maintained  the  affirma- 
tive of  the  issue;  for  a  negative  is,  in  general,  incapable  of 
proof.2  Consequently,  unless  he  succeed  in  proving  that  af- 
firmative, the  jury  are  to  consider  the  opposite  proposition,  or 
negative  of  the  issue,  to  be  established.  Thus,  in  the  same 
•example,  it  would  be  for  the  plaintiff  to  prove  the  duress,  for 
it  is  he  who  affirms  it ;  and  if,  on  such  proof,  he  fails,  or  offers 
no  proof,  the  jury  must  find  for  the  defendant. 

§  121.  Variance. —  Under  this  head  comes  to  be  considered 
the  doctrine  of  variance. 3  The  proof  offered  may,  in  some 


1  Issues  in  civil  cases  are  to  be  de- 
termined in  accordance  with  the  pre- 
ponderance of  the  evidence.  It  is  not 
required  that  the  evidence  should  be 
satisfactory.  In  this  respect  a  civil 
case  differs  from  a  criminal  one,  and 
for  a  manifest  reason.  In  a  civil  case 
the  jury  must  find  in  favor  of  one 
or  the  other  party,  though  the  evi- 
dence be  never  so  unsatisfactory.  So 
it  is  said  that  the  rights  of  men  must 
be  determined  by  probability.  Bur- 
rill  on  Circumstantial  Evidence,  p.  81 ; 
Gammon  v.  Ruffin,  151  Mass.  204; 
Beardstown  v.  Virginia,  76  111.  44; 
Graves  v.  Colwell,  90  id.  612 ;  Strat- 
ton  v.  Cent.  C.  H.  R.  Co.,  95  id.  25. 
The  ordinary  presumptions  of  inno- 
cence, continuance  of  facts,  failure 
to  testify  as  to  facts  within  knowl- 
edge, all  act  as  evidence  in  a  case. 
Gammon  v.  Ruffin,  supra;  1  Green- 
leaf  on  Evidence,  sec.  41 ;  Shipherd 
v.  Underwood,  55  111.  482 ;  Gordon  v. 
People,  33  N.  Y.  509;  Jones  v. 
Greaves,  26  Ohio  St  2 ;  Best's  Right 
to  Begin,  81.  These  presumptions 
no  enlightened  tribunal  disregards. 
New  Orleans  v.  United  States,  10  Pet 
721 ;  Jackson  v.  Warford,  7  Wend.  62 ; 
Hutchinson  v.  Dubois,  45  Mich.  143 ; 


Marquette  v.  Ward,  50  id.  174 ;  Wood 
v.  Barker,  49  id.  295;  Campbell  v. 
Sherman,  49  id.  534.  The  verdict 
must  not  be  found  upon  a  statement 
of  the  facts  by  a  juror.  Foster's 
Will,  34  Mich.  21. 

2  Where  a  fact  rests  in  the  knowl- 
edge of  a  party  and  he  fails  to  make 
it  appear  so  as  to  clear  up  the  case, 
the  jury  may  infer  against  the  party 
on  that  account  Lockhart  v.  White, 
77  Ga.  786.  See  McEvoy  v.  Swayze, 
34  Neb.  315;  Odum  v.  Rutledge  &  J. 
R.  Co.,  94  Ala.  454.  As  to  who  has 
the  burden  of  proof  and  right  to  open 
and  close,  see  Benham  v.  Rowe,  2  CaL 
387;  Harvey  v.  Illithorpe,  26  III  418; 
Beatty  v.  Hatcher,  13  Ohio  St.  115; 
Yingling  v.  Hesson,  16  Md.  112;  Mar- 
shall v.  Am.  Exp.  Co.,  7  Wis.  1;  Kent 
v.  Mason,  79  111.  541 ;  McReynolds  v. 
B.  &  O.  R.  R.  Co.,  106  id.  152;  Car- 
penter v.  First  Nat.  Bank,  119  id.  352. 
As  to  whether  defendant  can  obtain 
the  open  and  close  in  slander  and 
libel,  see  Thompson  on  Trial,  §  230; 
Fry  v.  Bennett,  28  N.  Y.  324;  Mercer 
v.  Whall,  5  Ad.  #  El.  (N.  S.)  447-463; 
Best's  Right  to  Begin,  34. 

3 See  "Theory." 


220  CAUSES   AND    FORMS    OF   ACTION.  [§  121. 

cases,  wholly  fail  to  support  the  affirmative  of  the  issue ;  but 
in  others  it  may  fail  by  a  disagreement  in  some  particular 
point  or  points  only  between  the  allegation  and  the  evidence.1 
Such  disagreement,  when  upon  a  material  point,  is  called  a 
variance,  and  is  as  fatal  to  the  party  pn  whom  the  proof  lies 
as  a  total  failure  of  evidence;  the  jury  being  bound,  upon 
variance,  to  find  the  issue  against  him.  For  example:  the 
plaintiff  declared  in  covenant  for  not  repairing  pursuant  to 
the  covenant  in  the  lease,  and  stated  the  covenant  as  a  cove- 
nant to  "  repair  when  and  as  need  should  require ; "  and  issue 
was  joined  on  a  traverse  of  the  deed  alleged.  The  plaintiff, 
at  the  trial,  produced  the  deed  in  proof,  and  it  appeared  that 
the  covenant  was  thus :  to  repair  "  when  and  as  need  should 
require,  and  at  farthest  after  notice;  "  the  latter  words  having 
been  omitted  in  the  declaration.  This  was  held  to  be  a  vari- 
ance, because  the  additional  words  were  material,  and  quali- 
fied the  legal  effect  of  the  contract,  (o)  On  the  other  hand, 
however,  the  principle  is  not  so  rigorously  observed  as  to 
oblige  the  party  on  whom  the  proof  lies  to  make  good  his 
allegation  to  the  letter.  It  is  enough  if  the  substance  of  the 
issue  is  exactly  proved ;  (p)  and  a  variance  in  mere  form,  or 
in  matter  quite  immaterial,  will  not  be  regarded.2  Thus,  in 

(o)  Horsefall  v.  Tester,  7  Taunt.  385;  and  see  Browne  v.  pull,  2  Brod.  &  Bing.  895; 
Vansandan  v.  Burt,  5  Barn.  &  Aid.  42. 

Cp)  Com.  Dig.,  Pleader,  sec.  26;  Vin.  Ab.,  Evidence,  note  a,  10;  B.  N.  P.  299;  Doct.  PL 
191,  205;  Price  v.  Brown,  1  Wils.  116;  Coare  v.  Giblett,  4  East,  90;  and  see  the  cases  cited,  1 
Arch.  836. 

1  It  is  said  that  the  codes  recognize  508 ;  Harper  v.  Milwaukee,  80  Wis. 
three  degrees  of  variance :    1.    An  365 ;  Fisk  v.  Tank,  12  id.  276 ;  Dean 
immaterial  variance.     2.  When  the  v.   Notes,   23  Ohio  St.   388;   Super- 
proof  varies    from    the    allegation,  visors  v.  Decker,  30  Wis.  624;  Ross 
8.  Where  the  evidence  wholly  fails  v.    Mathen,    51     N.    Y.    108;    Roth 
to  agree  with  the  allegation.    Pome-  v.  Roth,  31   Wia  570 ;  Anderson  v. 
toy's  Code  Rem.,  §  552.    But  it  is  ap-  Case,  28  id.  505 ;   Terry  v.  Hunger, 
parent  that  the  immaterial  variance  121  N.  Y.  161.    The  cases  on  election 
is  no  variance  in  law,  and  that  the  of  remedy  will  illustrate  this  point 
analysis  differs  only  in  form  of  ex-  Where  the  party  could  not  have  been 
pression.  misled,  a  variance  in  the  description 

2  See  Buhl  v.  Trowbridge,  42  Mich,  of  a  written  instrument  in  the  plead- 
44;  McDonough  v.  Heyman,  38  id.  ings  will  be  disregarded.    Rorabacher 
334;  Patterson  v.  Detroit,  L.   &  N.  v.   Lee,   16  Mich.   169;    Lathrop  v. 
R  Co.,  56  id.  173;  Lull  v.  Davis,  1  Southworth,  5  id.  436.    Where  the 
id.  77;  Arnold  v.   Angel  1,  62  N.  Y.  declaration  contains  several  counts 


§  122.]  PKOCEEDINGS   IN   AN   ACTION.  221 

debt  on  bond  conditioned  for  payment  of  money,  where  the 
defendant  pleaded  payment  of  principal  and  interest,  and  the 
plaintiff  replied  that  he  had  not  paid  all  the  principal  and  in- 
terest, and  issue  was  joined  thereon,  and  the  proof  was  that 
the  whole  interest  was  not  in  fact  paid,  but  that  the  defend- 
ant paid  a  sum  in  gross,  which  was  accepted,  in  full  satisfac- 
tion of  the  whole  claim, —  the  issue  was  considered  as  suffi- 
ciently proved  on  the  part  of  the  defendant,  (q) l 

§  122.  The  verdict,  when  given,  is  afterwards  drawn  up  in 
form,  and  entered  on  the  back  of  the  record  of  nisi  prius? 
This  is  done,  upon  trials  in  London  and  Middlesex,  by  the  at- 
torney for  the  successful  party;  in  other  cases,  by  an  officer 
of  the  court,  (r)  Such  entry  is  called  the  posted^  from  the 
word  with  which,  at  a  former  period  (when  the  proceedings 
were  in  Latin),  it  commenced.  The  posted  is  drawn  up  in  the 
negative  or  affirmative  of  the  issue,  as  will  appear  by  the  fol- 
lowing example : 

POSTEA. 

For  the  Plaintiff,  on  the  Issue,  at  p.  214,  if  tried  at  Nisi  Prius,  in  London 

or  Middlesex. 

Afterwards,  that  is  to  say,  on  the  day,  and  at  the  place 
within  contained,  before  the  Right  Honorable  Sir  Charles 
Abbott,  Knight,  the  chief  justice  within  mentioned  (John 

(g)  Str.  690. 

(r)  2  Tidd,  795  (4th  ed.). 

and  there  is  a  variance  between  the  enter  it  in  form  under  the  direction 

first  count  and  the  proof,  but  such  of  the  court  It  may  be  reduced  to 

variance  does  not  extend  to  the  other  writing  and  signed  by  the  jury,  or 

counts,  the  recovery  may  be  sustained  it  may  be  delivered  orally.  Griffin 

under  these  counts.  L.  E.  &  W.  R.  v.  Larned,  111  111.  432.  If  it  is  in 

R.  Co.  v.  Middlecoff,  150  111.  27.  writing  and  signed,  and  is  good  in 

1  Variance  must  be  pointed  out  substance,  the  court  may,  in  the 

upon  the  trial  that  it  may  be  obvi-  presence  of  the  jury,  reduce  it  to 

ated  by  amendment  Nelson  v.  form,  if  defective.  Osgood  v.  Mc- 

Smith,  54  111.  App.  345.  See  McHardy  Connell,  32  111.  74;  Pekin  v.  Winkel, 

v.  Wadsworth,  8  Mich.  349 ;  McCoy  77  id.  56 :  Godf riedson  v.  People,  88 

v.  Brennan,  61  id.  362 ;  Merkle  v.  id.  284  And  see  Sleight  v.  Henning, 

Bennington,  68  id.  133;  Robinson  C.  12  Mich.  371.  Or  the  jury  may  be 

C.  Co.  v.  Johnson,  13  Colo.  258.  sent  back  with  instructions  as  to 

3  In  Illinois  there  is  no  fixed  rule  the  proper  form  (Smith  v.  Will- 
as  to  the  form  in  which  the  verdict  iams,  22  111.  357),  if  good  in  sub- 
is  to  be  rendered.  The  clerk  is  to  stance,  that  is,  sufficient  under  the 
15 


222  CAUSES    AND  FORMS   OF    ACTION.  [§  123. 

Henry  Abbott,  Esquire,  being  associated  to  the  said  chief  jus- 
tice, according  to  the  form  of  the  statute  in  such  case  made 
and  provided),  come  as  well  the  within-named  A.  B.  as  the 
said  C.  D.,  by  their  respective  attorneys  within  mentioned ; 
and  the  jurors  of  the  jury,  whereof  mention  is  within  made, 
being  summoned,  also  come,  who,  to  speak  the  truth  of  the 
matters  within  contained,  being  chosen,  tried  and  sworn,  say, 
upon  their  oath,  that  the  said  A.  B.  was,  at  the  time  of  the 
making  of  the  said  deed  of  release  within  mentioned,  unlaw- 
fully imprisoned  and  detained  in  prison  by  the  said  C.  D., 
until  by  force  and  duress  of  that  imprisonment  he,  the  said 
A.  B.,  made  the  said  deed  of  release  in  manner  and  form  as 
the  said  A.  B.  hath  within  alleged.  And  they  assess  the  dam- 
ages of  the  said  A.  B.  by  reason  of  the  said  breach  of  cove- 
nant within  assigned,  over  and  above  his  costs  and  charges  by 
him  about  his  suit  in  this  behalf  expended,  to  fifty  pounds; 
and  for  those  costs  and  charges  to  forty  shillings.  Therefore, 
etc.  (s) 

Such  is  the  course  of  trial  at  nisi  priusy  in  its  direct  and 
simple  form ;  and  the  practice  of  a  trial  at  bar  is,  in  a  general 
view,  the  same.  Trials  by  jury,  however,  whether  at  bar  or 
nisiprius,  are  subject  to  certain  varieties  of  proceeding;  some 
of  which  require  to  be  here  noticed. 

§123.  Bill  of  exceptions. —  If,  at  the  trial,  a  point  of  law 
arises,  either  as  to  the  legal  effect  or  the  admissibility  of  the 
evidence,  the  usual  course  (as  already  stated)  is  for  the  judge 
to  decide  these  matters.1  But  it  may  happen  that  one  of  the 
parties  is  dissatisfied  with  the  decision,  and  may  wish  to  have 

(«)  Tidd's  Appendix,  en.  xxxvii;  5  Went.  62. 

statute  of  jeofaila    Wiggins  v.  Chi-  considers  inadmissible,  either  on  ac- 

cago,  68  111.  372 ;  Lincoln  T'p  v.  Cam-  count  of  the  incompetency  of  the  in- 

bria  Iron  Co.,  103  U.  S.  412.   The  court  strument  of  proof,  whether  a  witness 

usually,  in  the  first  instance,   indi-  or  document,  or   because  of  irrele- 

cate  to  the  jury,  before  retiring,  in  Tancy,  is  to  object,  and  the  ruling  of 

what  language  the  verdict  should  be  the  court  may  be  preserved  by  the 

announced.    Illinois  Cent  R.  R.  Co.  party  against  whom  the  ruling  is 

v.  Wheeler,  149  111.  525.  made,  by  an  exception.    See  Bill  of 

i  The  order  of  introducing  proof  is  Exception.     Bloomington   v.    Legg, 

largely  within  the  discretion  of  the  Adm'r,  151  111.  9. 

judge,  but  not  entirely  so.    Lafay-  If  by  no  theory  the  evidence  ob- 

ette,  B.  &  M.  R.  Co.  v.  Winslow,  66  jected  to  can  be  competent,  a  gen- 

III  219 ;  Lycoming  Ins.  Co.  v.  Rubin,  eral  objection  will  suffice ;  but  if  the 

79  id.  402 ;  People  v.  Parish,  4  Denio,  objection  could  be  obviated,  the  spe- 

153.  cial  grounds  of  the  objection  must 

The  proper  course  of  counsel  upon  be  stated.    Brandt    v.  Trimmer,    47 

the  offering  of  evidence  which  he  N.  Y.  96;  St  Clair  Co.  Benevolent 


§  123.]  PROCEEDINGS    IN    AN  ACTION.  223 

it  revised  by  a  superior  jurisdiction.  If  he  is  content  to  refer 
it  to  the  superior  court  in  which  the  issue  was  joined,  and 
out  of  which  it  is  sent  (called,  by  way  of  distinction  from  the 
court  at  nisi  prius,  the  court  in  oanfy,  his  course  is  to  move, 
in  that  court,  for  a  new  trial/  a  proceeding  of  a  future  or  sub- 
sequent period,  which  will  be  considered  hereafter  in  its 
proper  place.  But,  as  the  nisi  prius  judge  himself  frequently 
belongs  to  that  court,  a  party  is  often  desirous,  under  such 
circumstances,  to  obtain  the  revision  of  some  court  of  error; 
i.  e.,  some  court  of  appellate  jurisdiction  having  authority  to 
correct  the  decision.  For  this  purpose  it  becomes  necessary 
to  put  the  question  of  law  on  record  for  the  information  of 
such  court  of  error;  and  this  is  to  be  done  pending  the  trial, 
in  a  form  marked  out  by  an  old  statute  (Westminster  2 ;  13 
Ed.  I.,  ch.  31).  The  party  excepting  to  the  opinion  of  the 
judge  tenders  him  a  Mil  of  exceptions;  that  is,  a  statement  in 
writing  of  the  objection  made  by  the  party  to  his  decision ; 
to  which  statement,  if  truly  made,  the  judge  is  bound  to  set 
his  seal,  in  confirmation  of  its  accuracy.  The  cause  then  pro- 
ceeds to  verdict,  as  usual,  and  the  opposite  party,  for  whom, 
the  verdict  is  given,  is  entitled,  as  in  the  common  course,  to 
judgment  upon  such  verdict  in  the  court  in  bank;  for  that 
court  takes  no  notice  of  the  bill  of  exceptions,  (f)  But  the 
whole  record  being  afterwards  removed  to  the  appellate  court 
by  writ  of  error  (a  proceeding  to  be  hereafter  explained),  the 
bill  of  exceptions  is  then  taken  into  consideration  in  the  latter 
court  and  there  decided,  (u)  l 

Though  the  judge  usually  gives  his  opinion  on  such  points 
of  law  as  above  supposed,  yet  it  sometimes  happens  that  for 
various  reasons  he  is  not  required  by  the  parties,  or  does  not 
wish  to  do  so.  In  such  case  several  different  courses  may  be 
pursued  for  determining  the  question  of  law. 

(*)  1  Sel.  470. 

(w)  See  the  whole  course  of  proceeding  on  the  bill  of  exceptions,  minutely  stated,  3  Burr. 
1692;  and  on  the  subject  of  bill  of  exceptions  generally,  see  2  Lev.  236;  Salk.  288;  2  Black. 
929;  2  T.  R.  125;  1  Bos.  &  PuL  32;  5  East,  49. 

Soc.  v.  Fietsam,  97  I1L  477;  Harden  argument;  but  on  objection  for  want 

v.  Forsythe,  99  id.  826.  of  relevancy,  the  party  offering  the 

On  an  objection  to  the  competency  evidence    has    the    burden.    Best's 

of  a  witness  the  objector  has  the  bur-  Right  to  Begin,  p.  37,  note, 

den,  and  should  open  and  close  the  J  See  Bill  of  Exceptions,  infra. 


22-4  CAUSES   AND   FOKMS   OF    ACTION.  [§§  12is  125. 

§124.  Demurrer  to  evidence. —  First,  a  party  disputing  the 
legal  sufficiency  of  any  evidence  offered,  or  its  admissibility 
in  point  of  law,  may  demur  to  the  evidence.  A  demurrer  to 
evidence  is  analogous  to  a  demurrer  in  pleading ;  the  party 
from  whom  it  comes  declaring  that  he  will  not  proceed  be- 
cause the  evidence  offered  on  the  other  side  is  not  sufficient 
to  maintain  the  issue.  Upon  joinder  in  demurrer  by  the  op- 
posite party,  the  jury  are,  in  general,  discharged  from  giving 
any  verdict ;  (a?)  and  the  demurrer,  being  entered  on  record, 
is  afterwards  argued  and  decided  in  the  court  in  bank ;  and 
the  judgment  there  given  upon  it  may  ultimately  be  brought 
before  a  court  of  error,  (y)  * 

§125,  General  and  special  verdict. —  A  more  common,  be- 
cause more  convenient,  course  than  this,  to  determine  the 
legal  effect  of  the  evidence,  is  to  obtain  from  the  jury  a  special 
verdict  in  lieu  of  that  general  one,  of  which  the  form  has  al- 
ready been  described.  For  the  jury  have  an  option,  instead 
of  finding  the  negative  or  affirmative  of  the  issue,  as  in  a  gen- 
eral verdict,  to  find  all  the  facts  of  the  case  as  disclosed  upon 
the  evidence  before  them,  and,  after  so  setting  them  forth,  to 
conclude  to  the  following  effect:  "that  they  are  ignorant,  in 
point  of  law,  on  which  side  they  ought,  upon  these  facts,  to 
find  the  issue;  that  if,  upon  the  whole  matter,  the  court  shall 
be  of  opinion  that  the  issue  is  proved  for  the  plaintiff,  they 
find  for  the  plaintiff  accordingly,  and  assess  the  damages  at 
such  a  sum,  etc. ;  but  if  the  court  are  of  an  opposite  opinion, 
then  vice  versa.  This  form  of  findings  is  called  a  special  ver- 
dict. However,  as  on  a  general  verdict,  the  jury  do  not  them- 
selves actually  frame  the postea,  so  they  have,  in  fact,  nothing 
to  do  with  the  formal  preparation  of  the  special  verdict. 
When  it  is  agreed  that  a  verdict  of  that  kind  is  to  be  given, 

(x)  1  Arch.  Pract.  188. 

(y)  For  full  information  on  the  subject  of  demurrer  to  evidence,  see  Johnson  v.  Hunter, 
8  H.  Bl.  187. 

1 A  demurrer  to  the  evidence,  a  Adler,  129  id.  835 ;  Crowe  v.  People, 

motion  to  exclude  all  the  evidence,  92  id.  231 ;  Dormady  v.  State  Bank, 

and  a  motion  for  a  verdict,  all  per-  2  Scam.  236 ;  Fent  v.  T.  P.  &  W.  Ry., 

form  substantially  the  same  office,  59  id.  349;  Penn  Co.  v.  Conlon,  101 

and  have  the  same  effect  as  an  ad-  id.  93.    See  Mitchell  v.  Mo.  P.  Ry.,  83 

mission.    Suydam  v.  Williamson,  20  Mo.  106.    See,  also,  Directing  a  Ver- 

How.  433 ;  C.  &  N.  W.  Ry.  v.  Dun-  diet,  p.  207. 
leavy,  129  111.   132;  G  &  A.  Ry.  v. 


§  125.]  PROCEEDINGS    IN   AN   ACTION.  225 

the  jury  merely  declare  their  opinion  as  to  any  fact  remain- 
ing in  doubt;  and  then  the  verdict  is  adjusted  without  their 
farther  interference.  It  is  settled,  under  the  correction  of  the 
judge,  by  the  counsel  and  attorneys  on  either  side,  according 
to  the  state  of  facts  as  found  by  the  jury,  with  respect  to  all 
particulars  on  which  they  have  delivered  an  opinion,  and  with 
respect  to  other  particulars  according  to  the  state  of  facts 
which  it  is  agreed  that  they  ought  to  find  upon  the  evidence 
before  them.  The  special  verdict,  when  its  form  is  thus  set- 
tled, is,  together  with  the  whole  proceedings  on  the  trial,  then 
entered  on  record;  and  the  question  of  law  arising  on  the 
facts  found  is  argued  before  the  court  in  bank,  and  decided  by 
that  court,  as  in  case  of  demurrer.  If  the  party  be  dissatis- 
fied with  their  decision,  he  may  afterwards  resort  to  a  court 
of  error.1 

It  is  to  be  observed  that  it  is  a  matter  entirely  in  the  op- 
tion of  the  jury  whether  their  verdict  shall  be  general  or  spe- 
cial, (s)  The  party  objecting  in  point  of  law  cannot  therefore 
insist  on  having  a  special  verdict,  and  may  consequently  be 
driven  to  demur  to  the  evidence  —  at  least  if  he  wishes  to  put 
the  objection  on  record,  without  which  no  writ  of  error  can  be 
brought,  nor  the  decision  of  a  court  of  error  obtained.  But  if 
the  object  be  merely  to  obtain  the  decision  of  the  court  in 
bank,  and  it  is  not  wished  to  put  the  legal  question  on  record 
in  a  view  to  a  writ  of  error,  then  the  more  common  (because 
the  cheaper  and  shorter)  course  is,  neither  to  take  a  special 
verdict  nor  demur  to  the  evidence,  but  to  take  a  general  verdict, 
subject  (as  the  phrase  is)  to  a  special  case;  that  is,  to  a  written 
statement  of  all  the  facts  of  the  case,  drawn  up  for  the  opin- 
ion of  the  court  in  bank,  by  the  counsel  and  attorneys  on  either 

(z)  1  Arch.  Pract  189. 

1 A  special  verdict  is  one  by  which  Coyle,  58  Pa.  St  461 ;  Vincent  v.  Mor- 
the  facts  of  the  case  are  put  on  rec-  rison,  supra.  Finding  sufficient  evi- 
ord,  and  the  law  submitted  to  the  dence  prima  facie  to  establish  facts 
judges.  2  Bosw.  623;  Vincent  v.  essential  upon  which  to  found  the 
Morrison,  Breese  (111.),  175;  Newell,  judgment  is  not  sufficient.  All  the 
Mai.  Pros.  553.  The  special  verdict  essential  facts  must  be  found.  Blake 
should  find  facts,  not  mere  evidence,  v.  Davis,  20  Ohio,  231.  A  special  ver- 
The  court  has  to  do  with  questions  diet  cannot  be  aided  by  intendment 
of  law  only.  Chicago,  etc.  R  Co.  v.  Lee  v.  Campbell,  4  Porter  (Ala.).  198. 
Duuleavy,  129  III.  132;  Seward  v.  For  form  of  special  verdict,  see  Beck- 
Jackson,  8  Cow.  406 ;  Kinsley  v.  hill  v.  Turnpike  Co.,  3  DalL  *496. 


226  CAUSES    AND   FORMS    OF   ACTION.  [§  126, 

side,  under  correction  of  the  judge  at  nisi  prius,  according  to 
the  principle  of  a  special  verdict,  as  above  explained.  The  party 
for  whom  the  general  verdict  is  so  given  is,  of  course,  not  en- 
titled to  judgment  till  the  court  in  bank  has  decided  on  the 
special  case ;  and  according  to  the  result  of  that  decision  the 
verdict  is  ultimately  entered  either  for  him  or  his  adversary. 
A  special  case  is  not  (like  a  special  verdict)  entered  on  record; 
and  consequently  a  writ  of  error  cannot  be  brought  on  this 
decision.1 

§  126.  Special  verdict  —  Special  findings  —  [By  statute  in 
Illinois, —  In  all  trials  by  jury  in  civil  proceedings  in  courts  of 
record  the  jury  may  render,  in  their  discretion,  either  a  general 
or  a  special  verdict;  and  in  any  case  in  which  they  render  a 
general  verdict  they  may  be  required  by  the  court,  and  must 
be  so  required  on  request  of  any  party  to  the  action,  to  find 
specially  upon  any  material  question  or  questions  of  fact  which 
shall  be  stated  to  them  in  writing,  which  questions  of  fact- 
shall  be  submitted  by  the  party  requesting  the  same  to  the 
adverse  party  before  the  commencement  of  the  argument  to 
the  jury.2 

When  the  special  finding  of  fact  is  inconsistent  with  the  gen- 
eral verdict,  the  former  controls  the  latter  and  the  court  must 
render  judgment  accordingly. 

The  provisions  of  this  statute,  so  far  as  they  relate  to  gen- 
eral and  special  verdicts,  are  almost  identical  with  the  com- 
mon law  — that  is,  they  leave  the  jury  the  option  to  render 
either  kind  of  a  verdict,8  but  if  a  general  verdict  is  returned 
the  jury  must  return  answers  to  requests  for  special  find- 
ings. 

!A  special  verdict  cannot  be  re-  mond,  148  111.  241;  Suydam  v.  Will- 
quired,  but  it  is  common  to  provide  iamson,  20  How.  427;    Mumford  v. 
by  statute    for  special  findings  of  Ward  well,  6  Wall.   428;   Collins  v. 
fact -by  the  jury.     156  111.  244.     That  Riley,  104  U.  S.  322;  Barnes  v.  Rem- 
these  two  are  not  the  same,  see  C.  &  bady,  150  IIU  192. 
N.  W.  Ry.  Co.  v.  Dunleavy,  129  111.  132;  2  As  there  may  be  several  causes 
Seward  v.  Jackson,  8  Cow.  406;  Kins-  joined,  there  may  be  several  verdicts, 
ley  v.  Coyle.  58  Pa.  St.  461;  Leach  v.  Tarns  v.  Lewis,  42  Pa.  St.  410. 
Church,  10  Ohio  St.  149;  Alhambra  3  Wabasb.  R.  Co.  v.  Speer,  156  I1L 
Add.  W.  Co.  v.  Richardson,  72  Cal.  244. 
698;   Elgin,  J.  &  E.  R.  Co.  v.  Ray-  . 


§  127.]  PEOOEEDINGS   IN   AN   ACTION.  227 

These  special  findings  are  a  part  of  the  record.  The  follow- 
ing are  examples  of  questions  for  special  findings: 

(1)  Do  you  find  from  the  evidence  that  it  is  a  common  cus- 
tom for  two  men,  in  unloading  trucks  or  wagons,  to  swing  or 
hand  down  barrels  of  a  similar  character  and  weight  without 
the  use  of  a  barrel-step  or  other  support  to  rest  them  on? 
No. 

(2)  In  swinging  or  handing  down  the  barrels  of  salt  with- 
out the  use  of  a  barrel-step  or  other  support  to  rest  the  barrel 
on,  was  there  any  danger  which  was  not  as  plain  and  apparent 
to  Gall  as  to  Freichl?    Yes. 

(3)  Was  the  falling  of  the  barrel  an  accident  which  might, 
under  similar  circumstances,  happen  to  any  two  ordinarily 
careful  men  working  together  ?    Yes. 

(4)  Was  the  accident  caused  by  the  carelessness  on  Freichl's 
part  in  the  manner  in  which  he  handled  his  side  of  the  barrel  ? 
Tes.] 

§  127.  Proceedings  after  yerdict. — "We  must  now  return  to 
the  course  of  proceeding  after  trial  by  jury,  in  what  has  been 
here  called  its  direct  or  simple  form. 

The  proceedings  on  trial  by  jury  at  nisiprius  or  at  lar  ter- 
minate with  the  verdict. 

In  case  of  trial  at  nisiprius,  the  return-day  of  the  last  jury 
process,  the  distringas  or  habeas  corpora  (which,  like  all  other 
judicial  writs,  is  made  returnable  into  the  court  from  which 
it  issues),  always  falls  on  a  day  in  term  subsequent  to  the  trial, 
and  forms  the  next  continuance  of  the  cause.  On  the  day 
given  by  this  continuance,  therefore,  which  is  called  the  day 
in  bank,  the  parties  are  supposed  again  to  appear  in  the  court 
in  bank,  and  are  in  a  condition  to  receive  judgment.  On  the 
other  hand,  in  case  of  trial  at  bar,  the  trial  takes  place  on  or 
after  the  return-day  of  the  last  jury  process ;  and  therefore, 
immediately  after  the  trial,  the  parties  are  in  court,  so  that 
judgment  might  be  given.  In  either  case,  however,  a  period 
of  four  days  elapses  before,  by  the  practice  of  the  court,  judg- 
ment can  be  actually  obtained.  And  during  this  period  cer- 
tain proceedings  may  be  taken  by  the  unsuccessful  party  to 
avoid  the  effect  of  the  verdict.  He  may  move  the  court  to 
grant  a  new  trial,  or  to  arrest  the  judgment,  or  to  give  judgment 


228  CAUSES   AND  FOBMS   OF   ACTION.  [§  127. 

non  obstante  veredicto,  or  to  award  a  repleader,  or  to  award  a 
venire  facias  de  novo.  (a)    Of  these,  briefly,  in  their  order. 

1.  With  respect  to  a  new  trial:  It  may  happen  that  one  of 
the  parties  may  be  dissatisfied  with  the  opinion  of  the  nisi 
prius  judge,  expressed  on  the  trial,  whether  relating  to  the 
effect  or  admissibility  of  evidence,  or  may  think  the  evidence 
against  him  insufficient  in  law,  where  no  adverse  opinion  has 
been  expressed  by  the  judge,  and  yet  may  not  have  obtained 
a  special  verdict,  or  demurred  to  the  evidence,  or  tendered  a 
bill  of  exceptions.  He  is  at  liberty,  therefore,  after  the  trial 
and  during  the  period  above  mentioned,  to  move  the  court  in 
bank  to  grant  a  new  trial  on  the  ground  of  the  judge's  having 
misdirected  the  jury,1  or  having  admitted  or  refused  evidence 
contrary  to  law?  or  (where  there  was  no  adverse  direction  of 
the  judge)  on  the  ground  that  the  jury  gave  their  verdict  con- 
trary to  the  evidence,  or  on  evidence  insufficient  in  law.1  And 
resort  may  be  had  to  the  same  remedy  in  other  cases  where 
justice  appears  not  to  have  been  done  at  the  first  trial;  as 
where  the  verdict,  though  not  wholly  contrary  to  evidence  or 
on  insufficient  evidence  in  point  of  law,  is  manifestly  wrong 
in  point  of  discretion,  as  contrary  to  the  weight  of  evidence^  and 
on  that  ground  disapproved  by  the  nisi  prius  judge.4  So  a 
new  trial  may  be  moved  for  where  a  new  and  material  fact 
has  come  to  light  since  the  trial,  which  the  party  did  not  know 
and  had  not  the  means  of  proving  before  the  jury,5  or  where 

(a)  2  Tidd,  798. 

1  These  matters  are  so  purely  prac-  v-  Gilkeson,  5  S.  &  R.  352;  Clark  v. 
tice  that  nothing  more  can  be  given  Lake,  1  Scam.  229;  Sertel  v.  Graeter, 
here  than  some  idea  of  whereto  find  U2  Ind.  117;  Briant  v.  Trimmer,  47 
the  subjects  fully  discussed.   For  the  N-  Y.  96;   Chicago  W.  D.  R.  Co.  v. 
form  and  requisites  of  instructions,  Klauber,  9  Brad.  613. 

see  Sacket  on  Instructions;  Illinois        3  Kelly  v.  Mack,  49  Cal.  523;  Beal 

Linen  Co.  v.  Hough,  91  III  63;  Kamp-  v.  Stone,  22  Iowa,  447;  Heine  v.  Mor- 

house  v.  Gaffner,  73  id.  453;  Hoener  rison,  13  Ma  App.  577;  Weston  v. 

v.  Koch,  84  id.  408;  Herrick  v.  Gary,  Johnson,  48  Ind.  1;  Herrick  v.  Gary, 

83  id.  86.  83  111  86;  Hoener  v.  Koch,  84  id. 

2  The  evidence  must  have  been  ma-  408. 

teriaL    Thompson  v.  Thompson,  77  4  Sharp  v.  Hoffman.  79  CaL  404; 

Ga.  692;  Glover  v.  Flowers,  101  N.  C.  Ruffner  v.  Hill,  31  W.  Va.  428;  Stein- 

134;  Dannenberg  v.  Guernsey,  80  Ga.  metz  v.  Currey,  1  DalL  234;  Mary- 

549;   Gainsville  v.  Caldwell,  81   id.  land  Ins.  Co.  v.  Ruden,  6  Cranch,  338. 

76;  Huntington&  Broad  Top  Mount.  6The    newly-discovered   evidence 

Co.  v.  Decker,  82  Pa.  St.  119;  Nash  must  be  material    Atlanta  v.  Bu- 


§  127.] 


PROCEEDINGS    IN   AN   ACTION. 


229 


the  damages  given  by  the  verdict  are  excessive?  or  where  the 
jury  have  misconducted  themselves,  as  by  casting  lots  to  deter- 
mine their  verdict,  etc.8  In  these  and  the  like  instances  the 
court  will,  on  motion  and  in  the  exercise  of  their  discretion, 
under  all  the  circumstances  of  the  case,  grant  a  new  trial,  that 
opportunity  may  be  given  for  a  more  satisfactory  decision  of 
the  issue.3  A  new  jury  process  consequently  issues,  (5)  and 

(&)2Tidd,808. 

8  In  addition  to  the  above,  it  may 
be  noticed  that  the  disqualification  of 
a  juror  —  on  the  ground,  for  exam- 
ple, of  bias,  interest  or  preconceived 
opinion  —  is  ground  for  a  new  trial. 
See  Rollins  v.  Ames,  21  N  H.  349,  9 
Am.  Dec.  79;  Herbert  v.  Shaw,  11 
Mod.  Ill ;  Eggleston  v.  Smiley,  17 
Johns.  133 ;  United  States  v.  Fries,  3 
DalL  515;  Hudspeth  v.  Herston,  64 
Ind.  133;  Sewell  v.  State,  15  Tex. 
App.  56 ;  Busick  v.  State,  19  Ohio, 
198 ;  Pearcy  v.  Mich.  Mut  L.  Ins.  Co., 
Ill  Ind.  59.  A  new  trial  will  not  be 
so  readily  granted  for  such  disqualifi- 
cations as  age,  alienage  and  property. 
Brewer  v.  Jacobs,  22  Fed.  Rep.  234. 
And  if  the  party  knew  of  the  dis- 
qualification and  made  no  seasonable 
objection,  the  motion  will  be  denied. 
Bronson  v.  People,  82  Mich.  34 ;  Fox 
v.  Hazelton,  10  Pick.  275 ;  Davis  v. 
Allen,  11  id.  466,  22  Am.  Dec.  886 ; 
Quinebaug  Bank  v.  Leavens,  20 
Conn.  87,  50  Am.  Dec.  272 ;  Brown  v. 
Autrey,  78  Ga.  753;  Parmele  v. 
Guthery,  2  Root,  185,  1  Am.  Dec.  65 ; 
Ipswitch  v.  Fernandez,  84  Cal.  639 ; 
Buck  v.  Hughes,  127  Ind.  46.  See 
Jewell  v.  Jewell,  84  Me.  804,  19  L.  R 
A.  473,  and  note  by  Mr.  A.  P.  Will. 

Misconduct  of  a  party  by  com- 
munication with  a  juror,  treating,  or 
any  action  which  satisfies  the  court 
that  the  party  is  working  upon  the 
jury,  will  be  ground  for  new  trial. 
Martin  v.  Morelock,  32  111.  485 ;  Lyons 
v.  Lawrence,  12  Brad.  531 ;  Knight 
v.  Freeport,  13  Mass.  218 ;  Walker  v. 


chanan,  76  Ga.  585 ;  Hall  v.  Lyons, 
29  W.  Va.  410;  Morgan  v.  Bell,  41 
Kan.  345.  It  must  be  evidence  that 
could  not  have  been  obtained  before 
the  trial.  Baker  v.  Jamison,  73  Iowa, 
698;  Beachley  v.  McCormick,  41 
Kan.  485;  Feads  \*.  Albea,  69  Tex. 
437,  5  Am.  St.  R  79 ;  Booth  v.  Mc- 
Jilton,  82  Va.  827;  Ward  v.  Voris, 
117  Ind.  368;  Patterson  v.  Collier,  77 
Ga  292.  Cumulative  evidence  is  in- 
sufficient ground  for  a  new  trial. 
Brinson  v.  Faircloth,  82  Ga.  185 ;  Gil- 
more  v.  Brost,  39  Minn.  190 ;  Brooks 
v.  Dutcher,  22  Neb.  644;  Smith  v. 
Watson,  82  Va.  712 ;  Fuller  v.  Har- 
ris, 29  Fed.  Rep.  814;  Mowry  v. 
Raabe,  89  Cal.  606 ;  Plumb  v.  Camp- 
bell, 129  111.  101 ;  Donnelly  v.  Burkett, 
75  Iowa,  613 ;  Chandler  v.  Thompson, 
80  Fed.  Rep.  38 ;  Thrasher  v.  Postel, 
79  Wis.  503.  Newly-discovered  evi- 
dence for  the  purpose  of  impeaching 
a  witness  is  insufficient  to  justify  a 
new  trial.  State  v.  Burt,  41  La.  Ann. 
787,  6  L.  R.  A.  79. 

1  Sutherland  on  Damages ;  Com.  v. 
Justices,  5  Mass.  435;  Beveridge  v. 
Welch,  7  Wis.  467;  Chicago  W.  D. 
R  Co.  v.  Hughes,  87  111.  94 ;  Ray  v. 
Thompson,  26  Mo.  App.  431 ;  Lake 
E.  etc,  Ry.  v.  Acres,  108  Ind.  548. 

zirwin  v.  Miller,  23  111.  401;  111. 
Cent  R  Co.  v.  Swearingen,  47  id. 
206 ;  Hay  ward  v.  Knapp,  22  Minn.  5 ; 
Tripp  v.  Com'rs,  2  Allen  (Mass.),  556 ; 
Peoria  &  R  L  R  Co.  v.  Birkett,  62 
111.  332 :  Jeffries  v.  Randall,  14  Mass. 
205. 


230  CAUSES    AND   FORMS    OF   ACTION.  [§  127. 

the  cause  comes  on  to  be  tried  de  novo.  But,  except  on  such 
grounds  as  these,  tending  manifestly  to  show  that  the  discre- 
tion of  the  jury  has  not  been  legally  or  properly  exercised,  a 
new  trial  can  never  be  obtained ;  for  it  is  a  great  principle  of 
law  that  the  decision  of  a  jury,  upon  an  issue  in  fact,  is  in  gen- 
eral irreversible  and  conclusive,  (c) l 

2.  Arrest  of  judgment:  Again,  the  unsuccessful  party  may 
move  in  arrest  of  judgment;  that  is,  that  the  judgment  for 
the  plaintiff  be  arrested  or  withheld  on  the  ground  that  there 
is  some  error  appearing  on  the  face  of  the  record  which  vitiates 
the  proceedings.  In  consequence  of  such  error,  on  whatever 
part  of  the  record  it  may  arise,  from  the  commencement  of 
the  suit  to  this  period,  the  court  are  bound  to  arrest  the  judg- 
ment. It  is,  however,  only  with  respect  to  objections  apparent 
on  the  record  that  such  motions  can  be  made.  Nor  can  it  be 
made,  generally  speaking,  in  respect  of  formal  objections. 
This  was  formerly  otherwise,  and  judgments  were  constantly 
arrested  for  errors  of  mere  form ;  (d)  but  this  abuse  has  been 
long  remedied  by  certain  statutes,  passed  at  different  periods, 
to  correct  inconveniences  of  this  kind  and  commonly  called 
the  statutes  of  amendment  and  jeofails,  (e)  by  the  effect  of 
which,  judgment,  at  the  present  day,  cannot,  in  general,  be  ar- 
rested for  any  objection  of  form.* 

(c)  See  Appendix,  note  (33). 

(d)  See  2  Reeves,  448;  3  BL  Com.  407. 

(e)  See  Appendix,  note  (33). 

Walker,  11  Ga.  203;  Bradbury  v.  *  This  paragraph  is  cited  in  Puter- 
Cony,  62  Me.  223;  Hamilton  v.  Pease,  baugh's  III  Pr.  &  PL  811,  where  are 
88  Conn.  115;  Tomlin  v.  Cox,.  19  N.  cited  many  cases  illustrating  arrest 
J.  L.  76;  Cilley  v.  Bartlett,  19  N.  EL  of  judgment  Commercial  Ins.  Co. 
312.  See  Hutchinson  v.  Consumers'  v.  Bank,  61  III  483 ;  Creswell  v.  Pack- 
Coal  Co.,  36  N.  J.  L.  24  Any  attempt  ham,  6  Taunt  630 ;  Quincy  Coal  Co.  v. 
to  influence  testimony  or  trial  by  Hood,  77  111.  68 ;  Campton  v.  People, 
improper  means  suffices.  Chicago  86  id.  176 ;  Com.  v.  Hinds,  101  Mass. 
City  Ry.  v.  McMahon,  103  III  485.  209 ;  African  M.  E.  Ch.  v.  McGruder, 
1  As  we  have  seen,  this  is  now  true  73  III  516 ;  Matson  v.  Swanson,  131 
only  in  a  qualified  sense.  If  the  ver-  id.  255 ;  Am.  Ex,  Co.  v.  Pinckney,  29 
diet  is  not  supported  by  the  evidence,  id.  392 ;  Ind.  Order  v.  Paine,  122  id. 
or  if  it  is  clearly  the  result  of  preju-  625.  The  codes  do  not  change  the 
dice  or  passion,  the  verdict  may  be  law,  but  the  scope  of  the  remedy  ia 
set  aside.  Tripp  v.  Grounder,  60  III  much  modified  by  statutes.  People 
474;  Gibson  v.  Webster,  44  id.  483;  v.  Swenson,  49  Cal.  388 ;  State  v.  Ray- 
Loewenthal  v.  Strong,  90  id.  74  mond,  20  I^wa,  582 ;  McGuire  v.  State, 


§  127.]  PROCEEDINGS    IN   AN   ACTION.  231 

3.  Judgment  non  obstante  veredicto: l  If  the  verdict  be  for  the 
defendant,  the  plaintiff,  in  some  cases,  moves  for  judgment  non 
obstante  veredicto;  that  is,  that  judgment  be  given  in  his  own 
favor  without  regard  to  tlie  verdict  obtained  by  the  defendant. 
This  motion  is  made  in  cases  where,  after  a  pleading  by  the 
defendant  in  confession  and  avoidance,  as,  for  example,  a  plea 
in  bar,  and  issue  joined  thereon,  and  verdict  found  for  the  de- 
fendant, the  plaintiff,  on  retrospective  examination  of  the 
record,  conceives  that  such  plea  was  bad  in  substance  and 
might  have  been  made  the  subject  of  demurrer  on  that  ground. 
If  the  plea  was  itself  substantially  bad  in  law,  of  course  the 
verdict,  which  merely  shows  it  to  be  true  in  point  of  fact, 
cannot  avail  to  entitle  the  defendant  to  judgment ;  while,  on 
the  other  hand,  the  plea,  being  in  confession  and  avoidance, 
involves  a  confession  of  the  plaintiff's  declaration  and  shows 
that  he  was  entitled  to  maintain  his  action.  *In  such  case, 
therefore,  the  court  will  give  judgment  for  the  plaintiff  with- 
out regard  to  the  verdict;  and  this,  for  the  reason  above  ex- 
plained, is  also  called  a  judgment  as  upon  confession,  (f) 
Sometimes  it  may  be  expedient  for  the  plaintiff  to  move  for 
judgment  non  obstante,  etc.,  even  though  the  verdict  be  in  his 
own  favor;  for,  if  in  such  a  case  as  above  described,  he  takes 
judgment  as  upon  the  verdict^  it  seems  that  such  judgment 
would  be  erroneous,  and  that  the  only  safe  course  is  to  take  it 
as  upon  confession,  (g)  * 

4:.  TJie  motion  for  a  repleader  is  made  where  the  unsuccess- 
ful party,  on  examination  of  the  pleading,  conceives  that  the 
issue  joined  was  an  immaterial  issue,  i.  0.,  not  taken  on  a  point 
proper  to  decide  the  action.  It  has  been  shown  (A)  that  the 

(/)  Lacy  v.  Reynolds,  Cro.  Eliz.  214;  Staple  v.  Heydon,  6  Mod.  10;  The  King  v.  Phillips, 
Stra.  394;  Potts  v.  Polehampton,  1  Lord  Raym.  641;  Clears  v.  Stevens,  8  Taunt.  413;  *  and  see 
the  forms  of  such  judgments.  Rast.  Ent.  622;  2  RoL  Ab.  99;  Jones  v.  Bodinner,  Carth.  372; 
Wilkes  v.  Broadbent,  1  Wils.  63. 

(g)  Wilkes  v.  Broadbent,  1  Wils.  63;  Dighton  v.  Bartholomew,  Cro.  Eliz.  778;  2  RoL 
Ab.  99. 

(h)  Vide  supra,  §  106  et  seq. 

47  Md.  485;  Gray  v.  People,  21  Hun,  1  See  Reg.  v.  Governor,  6  Ad.  &  EL 

140.    Probably  the  most  instructive  703.  51  E.  C.  L. 

case  in  arrest  of  judgment,  aider  by  2  1   Chitty,  PI.   656;   Hitchcock  v. 

verdict,  and  the  regard  that  is  to  be  Haight,  2  Gilm.  604;  Rothchilds  v. 

had  to  the  substance  rather  than  the  Bruschke,  131   111.   265;   Buckley  v. 

form,  is  Bayard  v.  Malcolm,  2  Johns.  Duff,  111  Pa.  St.  223;  Adams  v.  Mun- 

550.  3  Am.  Dec.  450.  ten,  74  Ala.  338. 

»  Cited  Tarns  v.  Lewis,  42  Pa.  St.  412. 


232  CAUSES   AND   FOKMS    OF    ACTION.  [§  127. 

issue  joined  is  always  some  question  raised  between  the  parties 
and  mutually  referred  by  them  to  judicial  decision;  but  that 
point  may  nevertheless,  on  examination,  be  found  not  proper 
to  decide  the  action.  For  either  of  the  parties  may,  from  mis- 
apprehension of  law  or  oversight,  have  passed  over,  without 
demurrer,  a  statement  on  the  other  side,  insufficient  and  im- 
material in  law;  and  an  issue  in  fact  may  have  been  ultimately 
joined  on  such  immaterial  statement;  and  so  the  issue  will  be 
immaterial,  though  the  parties  have  made  it  the  point  in  con- 
troversy between  them.  For  example,  if  in  an  action  of  debt 
on  bond,  conditioned  for  the  payment  of  ten  pounds  ten  shill- 
ings at  a  certain  day,  the  defendant  pleads  payment  of  ten 
pounds,  according  to  the  form  of.  the  condition,  and  the 
plaintiff,  instead  of  demurring,  tenders  issue  upon  such  pay- 
ment, it  is  plain  that,  whether  this  issue  be  found  for  the 
plaintiff  or  tfie  defendant,  it  will  remain  equally  uncertain 
whether  the  plaintiff  is  entitled  or  not  to  maintain  his  action; 
for,  in  an  action  for  the  penalty  of  a  bond  conditioned  to  pay 
a  certain  sum,  the  only  material  question  is  whether  the  exact 
sum  were  paid  or  not,  and  a  payment  in  part  is  a  question 
quite  beside  the  legal  merits,  (i)  In  such  cases,  therefore,  the 
court,  not  knowing  for  whom  to  give  judgment,  will  award  a 
repleader,  that  is,  will  order  the  parties  to  plead  de  novo,  for 
the  purpose  of  obtaining  a  better  issue.  (K)  * 

(f)  Kent  v.  Hall,  Hob.  113;  and  see  another  instance,  Plomer  v.  Boss,  5  Taunt.  886. 

(fc)2  Saund.  319  b,  n.  6;  Bac.  Ab.,  Pleas,  etc.,  M.;  Com.  Dig.,  Pleader,  R.  18.  See  ex- 
amples of  cases  in  which  a  repleader  has  been  awarded  or  refused.  Anon.,  2  Vent.  196; 
Enys  r.  Mohun,  2  Str.  847;  Plomer  v.  Ross,  5  Taunt.  386;  Clears  v.  Stevens,  8  Taunt.  413; 
and  the  form  of  entering  an  award  of  repleader  on  record,  Co.  Ent  677,  42, 151;  Jefferson 
v.  Morton,  2  Saund.  20. 

1  Mr.  Chitty  in  his  first  edition  says  common  law  a  repleader  was  allowed 
that  the  principal  quality  of  an  issue  before  trial  because  the  verdict  did 
is  that  it  must  be  upon  a  material  not  cure  an  immaterial  issue.  But 
point  An  informal  issue  is  when  a  since  the  statute  of  jeofaila  a  re- 
material  allegation  is  traversed  in  an  pleader  ought  not  to  be  awarded  till 
improper  or  artificial  manner.  This  after  verdict,  because  the  error  could 
(an  informal  issue)  and  other  preced-  be  avoided  by  amendment  (2)  De- 
ing  mistakes  can  be  aided  by  verdict  nial  of  repleader  or  erroneously 
under  32  Hen.,  ch.  30.  But  a  verdict  granting  it  was  ground  for  error, 
does  not  help  an  immaterial  issue.  (3)  Judgment  was  that  the  parties 
1  Chitty,  PI.  (1st  ed.)  631.  In  Staples  begin  at  the  first  fault  (quod  paries 
v.  Hayden,  2  Salk.  579,  five  rules  as  replacitenf).  1  Ld.  Raymond,  169. 
to  repleader  were  laid  down :  (1)  At  (4)  No  costs  to  be  awarded  either 


§  128.]  PROCEEDINGS   IN   AN   ACTION.  233 

5.  A  venire  facias  de  novo,  that  is,  a  new  writ  of  venire 
facias,  will  be  awarded  when,  by  reason  of  some  irregularity 
or  defect  in  the  proceedings  on  the  first  venire  or  the  trial,  the 
proper  effect  of  that  writ  has  been  frustrated  or  the  verdict 
become  void  in  law;  as, for  example,  where  the  jury  has  been 
improperly  chosen,  or  given  an  uncertain  or  ambiguous  or 
defective  verdict.  The  consequence  and  object  of  a  new  venire 
are  of  course  to  obtain  a  new  trial;  and,  accordingly,  this  pro- 
ceeding is  in  substance  the  same  with  a  motion  for  a  new  trial. 
Where,  however,  the  unsuccessful  party  objects  to  the  verdict, 
in  respect  of  some  irregularity  or  error  in  the  practical  course 
of  proceeding  rather  than  on  the  merits,  the  form  of  the  appli- 
cation is  a  motion  for  a  venire  de  novo,  and  not  for  a  new 
trial.1 

§  128.  Other  modes  of  trial. —  The  proceedings  relative  to 
trial  by  jury  having  been  now  considered,  (I)  the  other  modes 
of  trial)  which  (as  has  been  already  observed)  (m)  are  of  rare 
and  limited  application,  may  be  dismissed  in  few  words. 

The  trial  by  the  grand  assise  is  very  similar  to  the  common 
trial  by  jury.  There  is  only  one  case  in  which  it  appears  ever 
to  have  been  applied,  and  there  it  is  still  in  force.  In  a  writ 
of  right,  if  the  defendant,  by  a  particular  form  of  plea  appro- 
priate to  that  purpose,  (n)  denied  the  right  of  the  demandant 
as  claimed,  he  had  the  option,  till  the  recent  abolition  of  the 
extravagant  and  barbarous  method  of  the  wager  of  battel,  (o) 
of  either  offering  battel  or  putting  himself  on  the  grand  assise 
to  try  whether  he  or  the  demandant  had  "  the  greater  right." 
The  latter  course  he  may  still  take;  and,  if  he  does,  the  court 
awards  a  writ  for  summoning  four  knights  to  make  election 

(I)  See  Appendix,  note  (34). 
(m)  Supra,  p.  215. 
(n)  See  the  plea,  3  Chitty,  652. 
(o)  By  Stat.  59  Geo.  in.,  ch.  46. 

party.    (5)  A  repleader   cannot   be  The  rules  above  stated  bring  out 

awarded  after  default,  or  generally  the  important  point,  viz. :  The  effect 

after  demurrer  or  writ  of  error,  nor  of  the  statute  of  amendments,  and 

when  the  court  may  give  judgment  accounts  for  the  fact  that  a  repleader 

Willes,  532.   See  Stafford  v.  Mayor  of  is  seldom  required  in  modern  practice 

Albany,  6  Johns.  1 ;  Magouen  v.  Lap-  when  amendments  are  made  in  form 

ham,    19    Pick.    419.      It    may    be  or  substance  before  or  after  verdict 

awarded  after  argument  of  demur-  J  Union  Bank  v.  Manistee  Co.,  43 

rer.    Potter  v.  Titcomb,  7  Greenl.  302.  111.  App.  525. 


CAUSES    AND   FORMS   OF   ACTION.  [§  128. 

of  twenty  other  recognitors.  These  knights  and  twelve  of  the 
recognitors  so  elected,  together  making  a  jury  of  sixteen,  con- 
stitute what  is  called  the  grand  assise;  and  when  assembled 
they  proceed  to  try  the  issue  or  (as  it  is  called  in  this  case) 
the  mise  upon  the  question  of  right.  The  trial,  as  in  the  case 
of  a  common  jury,  may  be  either  at  bar  or  nisiprius;  and  if 
at  nisi prius,  a  nisiprius  record  is  made  up;  and  the  proceed- 
ings are  in  either  case,  in  general,  the  same  as  above  explained 
with  respect  to  a  common  jury,  (p) 

¥pon  the  issue  or  mise  of  right,  the  wager  of  battel,  or  the 
grand  assise,  was,  till  the  abolition  of  the  former, —  and  the 
latter  still  is, —  the  only  legitimate  method  of  trial ;  and  the 
question  cannot  be  tried  by  a  jury  in  the  common  form,  (g) 

The  trial  ly  the  record  applies  to  cases  where  an  issue  of  nul 
tiel  record  is  joined  in  any  action.  If  a  record  be  asserted  on 
one  side  to  exist,  and  the  opposite  party  deny  its  existence, 
under  the  form  of  traverse  that  there  is  no  such  record  remain- 
ing in  court  as  alleged,  and  issue  be  joined  thereon,  this  is 
called  an  issue  of  nul  tiel  record;  and  the  court  awards  in  such 
case  a  trial  by  inspection  and  examination  of  the  record,  (r) 
Upon  this,  the  party  affirming  its  existence  is  bound  to  pro- 
duce it  in  court  on  a  day  given  for  the  purpose;  and  if  he  fail 
to  do  so  judgment  is  given  for  his  adversary.  The  trial  by 
record  is  not  only  in  use  when  an  issue  of  this  kind  happens 
to  arise  for  decision,  but  it  is  the  only  legitimate  mode  of 
trying  such  issue,  and  the  parties  cannot  put  themselves  upon 
the  country.1 

The  trial  by  certificate  is  now  of  very  rare  occurrence,  but 
is  still  in  force  upon  certain  issues,  (s)  of  which  the  principal 
and  most  important  is  the  issue  of  ne  unques  accouple  en  loial 
matrimonie.  This  arises  in  the  action  of  dower,  in  which  the 
tenant  may  plead  in  bar  that  the  demandant  "  was  never  ac- 
coupled  to  her  alleged  husband  in  lawful  matrimony"  Issue 
being  joined  upon  this,  the  court  awards  that  it  be  tried  by 

(p)  See  Tyssen  v.  Clarke,  8  Wils.  419,  641;  Hardman  v.  Clegg,  1  Holt,  N.  P.  R.  657;  8 
Chitty,  635;  2  Saund.  45  e;  1  Arch.  402,  for  full  information  on  the  subject  of  trial  by  the 
grand  assise. 

(9)  Galton  y.  Harvey,  1  Bos.  &  Pul.  192.    See  Appendix,  note  (85). 

(.r)  See  the  form  of  the  issue,  2  Chitty,  603. 

GO  The  kinds  of  issue  on  which  this  trial  may  occur  are  enumerated,  8  BL  Com.  83SL 

i  See  3  Cooley's  Black.  (4th  ed.)  331. 


§  123.]  PROCEEDINGS    IN   AN   ACTION.  235 

the  diocesan  of  the  place  where  the  parish  church  in  which 
marriage  is  alleged  to  have  been  had  is  situate,  and  that  the 
result  be  certified  to  them  by  the  ordinary  at  a  given  day.  (t) 
It  is  said  that  this  is  a  form  of  issue  which  can  arise  only  in 
dower,  (u)  The  trial  by  certificate  is,  when  competent,  the 
only  legitimate  mode,  and  the  issue  cannot  be  tried  by  jury. 

The  trial  by  witnesses  and  that  by  inspection  are  in  very  few 
instances  legally  competent,  and  are  not  now  known  in  prac- 
tice.1 It  seems,  however,  that  the  former  is  still  applicable 
(as  anciently)  to  an  issue  arising  on  the  death  of  the  husband 
in  an  action  of  dower,  (x)  and  in  some  other  cases ;  and  that 
the  proof  by  inspection  is  also,  in  some  instances,  still  admis- 
sible; for  example,  if  in  any  action,  upon  a  plea  of  parol  de- 
murrer, issue  be  taken  on  the  non-age,  (y)  In  case  of  trial  by 
witnesses,  the  court,  upon  issue  joined,  awards  that  both  par- 
ties produce  in  court,  at  a  given  day,  their  respective  wit- 
nesses; on  trial  by  inspection,  that  the  subject  to  be  inspected 
be  brought  into  court;  for  example,  that  the  guardian  of  the 
infant  bring  him  into  court  on  a  certain  day  to  be  viewed,  (z) 
In  either  case  the  judges  examine  and  decide,  and  the  judg- 
ment is  pronounced  accordingly.  It  is  to  be  observed,  how- 
ever, with  respect  to  trial  by  inspection,  that,  even  when  com- 
petent, it  seems  to  be  not  a  mode  so  exclusively  appropriate 
but  that  the  parties  may,  by  consent,  refer  the  questions  to  a 
jury ;  (a)  and  both  with  respect  to  this  trial  and  that  by  wit- 
nesses it  is  laid  down  that  if  after  the  evidence  the  judges  are 
still  unable  to  satisfy  themselves  on  the  fact,  they  have,  in 
general,  a  discretion  then  to  send  the  parties  to  the  country,  (b} 

The  trial  by  wager  of  law  has  also  fallen  into  complete  dis- 
use, but  in  point  of  law  it  seems  to  be  still  competent  in  most 
of  the  cases  to  which  it  anciently  applied.  The  most  impor- 
tant and  best  established  of  these  cases  is  the  issue  of  nil  debet, 

(f)  See  the  form  of  the  Issue,  3  Chitty,  599;  Co.  Ent.  181,  a. 

(u)  Bac.  Ab.,  Bastardy,  516,  cites  11  Hen.  4,  78. 

(a;)  Abbot  of  Strata  Mersella's  Case,  9  Rep.  30,  b;  Faux  v.  Barnes,  Lord  Raym.  174. 

(y)  Vin.  Ab.,  Trial  (B.  2),  10,  cites  29  Ass.  37;  19  E.  2. 

(z)  Vin.  Ab.,  Trial  (C.). 

(a)  Bac.  Ab.,  tit.  Infancy,  L.  10,  p.  634  (5th  ed.). 

(6)  Vin.  Ab.,  Trial,  C.  9,  10;  Bac.  Ab.,  Trial,  A.  2,  3;  8  Bl.  Com.  333. 

1  See  3  Cooley's  Black.  (3d  ed.)  336,  mitting  issues  to  the  judge  for  trial 
note  2.  The  modern  practice  of  sub-  is  upon  the  same  principle. 


236  CAUSES   AND   FOKMS    OF   ACTION.  [§  129. 

arising  in  an  action  of  debt  on  simple  contract,  or  the  issue  of 
non  detinet  in  an  action  of  detinue.  In  the  declaration  in  these 
actions,  as  in  almost  all  others,  the  plaintiff  concludes  by  offer- 
ing his  suit  (of  which  the  ancient  meaning  was  followers  or 
witnesses,  though  the  words  are  now  retained  as  a  mere  form), 
to  prove  the  truth  of  his  claim.  On  the  other  hand,  if  the  de- 
fendant, by  a  plea  of  nil  debet  or  non  detinet,  deny  the  debt 
or  detention,  he  may  conclude  by  offering  to  establish  the 
truth  of  such  plea  "  against  the  plaintiff  and  his  suit  in  such 
manner  as  the  court  shall  direct"  Upon  this  the  court  awards 
the  wager  of  law;  (c)  and  the  form  of  this  proceeding  when 
so  awarded  is,  that  the  defendant  brings  into  court  with  him 
eleven  of  his  neighbors,  and  for  himself  makes  oath  that  he 
does  not  owe  the  debt  or  detain  the  property  as  alleged ;  and 
then  the  eleven  also  swear  that  they  believe  him  to  speak  the 
truth;  and  the  defendant  is  then  entitled  to  judgment,  (d) 

It  is  to  be  observed  with  respect  to  this  mode  of  trial,  that 
though  the  defendant  has  thus  the  power  of  resorting  to  it, 
he  is  not  obliged  to  do  so.  He  is  at  liberty,  if  he  pleases,  to 
put  himself  upon  the  country;  the  trial  by  jury  being  a  mode 
of  decision  always  applicable  to  the  same  questions  on  which 
law  may  be  waged,  and  the  mode,  in  fact,  always  applied  to 
them  in  the  modern  practice,  (e) 

§  129.  The  judgment. —  It  has  now  been  shown  in  what 
manner  the  issue,  whether  in  law  or  fact,  is  decided.  It  has 
been  explained,  too,  by  what  means  the  unsuccessful  party 
may,  upon  an  issue  in  fact,  avoid  in  some  cases,  by  motion  in 
court  the  effect  of  the  decision.  Supposing,  however,  that 
such  means  are  not  adopted,  or  do  not  succeed,  or  that  the 
issue  be  an  issue  in  law,  the  next  step  is  the  judgment. 

As  the  issue  is  the  question  which  the  parties  themselves 
have,  by  their  pleading,  mutually  selected  for  decision,  they 
are  in  general  considered  as  having  mutually  put  the  fate  of 
the  cause  upon  that  question;  and  as  soon,  therefore,  as  the 
issue  is  decided  in  favor  of  one  of  them,  that  party  in  general 
becomes  victor  in  the  suit ;  and  nothing  remains  but  to  award 
the  judicial  consequence  which  the  law  attaches  to  such  suo 

(c)  See  the  form  of  such  Issue  and  award  of  trial,  Co.  Eut.  119  a;  L1L  Ent.  467;  3  Chitty, 
479. 

(0)  8  Bl.  Com.  343.   See  Appendix,  note  (36). 
(e)  See  Appendix,  note  (37). 


§  129.]  PROCEEDINGS    IN   AX   ACTION.  237 

cess.  The  award  of  this  judicial  consequence  is  called  the  judg- 
ment, and  is  the  province  of  the  judges  of  the  court.1 

The  nature  of  the  judgment  varies  according  to  the  nature 
of  the  action,  the  plea,  the  issue,  and  the  manner  and  result 
of  the  decision. 

It  shall  be  first  supposed  that  the  issue  is  decided  for  the 
plaintiff. 

In  this  case,  if  it  be  an  issue  in  law  arising  on  a  dilatory 
plea,  the  judgment  is  only  that  the  defendant  answer  over,  (f) 
which  is  called  a  judgment  of  respondeat  ouster?  The  plead- 
ing is  accordingly  resumed,  and  the  action  proceeds.  This 
judgment,  therefore,  does  not  fall  within  the  definition  of  the 
term  just  given,  but  is  of  an  anomalous  kind.  Upon  all  other 
issues  in  law,  and,  in  general,  all  issues  in  fact,  the  judgment  is 
that  the  plaintiff  do  recover,  (g)  which  is  called  a  judgment  quod 
recuperet.3  The  nature  of  such  judgment,  more  particularly 
considered,  is  as  follows :  It  is  of  two  kinds :  interlocutory, 
and  final.  If  the  action  sound  in  damages  (according  to  the 
technical  phrase),  that  is,  be  brought  not  for  specific  recovery 
of  lands,  goods  or  sums  of  money  (as  is  the  case  in  real  and 
mixed  actions,  or  the  personal  action  of  debt  and  detinue),  but 
for  damages  only,  as  in  covenant,  trespass,  etc., —  and  if  the 
issue  be  an  issue  in  law,  or  any  issue  in  fact  not  tried  ly  jury, 
then  the  judgment  is  only  that  the  plaintiff  ought  to  recover 
his  damages,  without  specifying  their  amount ; 4  for,  as  there 
has  been  no  trial  by  jury  in  the  case,  the  amount  of  damages 
is  not  yet  ascertained.  The  judgment  is  then  said  to  be  inter- 
locutory. On  such  interlocutory  judgment  the  court  does  not, 
in  general,  itself  undertake  the  office  of  assessing  the  dam- 

(/)  Bac.  Ab.,  Pleas,  etc.,  N.  4;  2  Arch.  Pract.  3. 

(0)  Com.  Dig.,  Abatement,  L  14,  L  15;  2  Arch.  Pract.  8. 

1  Thompson  v.  People,  23  Wend.  587.  the  reporter.    Rice  v.  Shute,  2  Burr. 

2  Bradshaw  v.  Morehouse,  1  Gilm.  261,  1  Sin.  Ld.  Cas.  1405.     On  issue 
395;  Young  v.  Gilles,  113  Mass.  34;  joined  on  plea  in  abatement  in  ao 
Parks  v.  Smith,  155  id.  26.    If  he  does  tion  for  a  debt  (sum  certain)  or  for  a 
not  plead  over,  judgment  goes  against  specific  thing,  the  judgment  is  final, 
him  by  default     Bradshaw  v.  More-  Steele  v.  G.  T.  Ry.  Co.,  20  III  App.  366; 
house,  supra.  Metzger  v.  Huntington,  51 11L  App. 

s  Greer  v.  Young,  120  111.  184.    See    377. 

Myers  v.  Erwin,  20  Ohio,  381,  to  4  Steele  v.  G.  T.  Ry.  Co.,  20  111.  App. 
which  is  added  a  valuable  note  by  366;  Myers  v.  Erwin,  20  Ohio,  380. 


238  CAUSES   AND   FORMS    OF   ACTION.  [§  129. 

ages,  but  issues  a  writ  of  inquiry,  directed  to  the  sheriff  of 
the  county  where  the  facts  are  alleged  by  the  pleading  to 
have  occurred,  commanding  him  to  inquire  into  the  amount 
of  the  damage  sustained,  "  by  the  oath  of  twelve  good  and 
lawful  men  of  his  county,"  and  to  return  such  inquisition, 
when  made,  to  the  court.  Upon  the  return  of  the  inquisition, 
the  plaintiff  is  entitled  to  another  judgment,  viz.,  that  he 
recover  the  amount  of  the  damages  so  assessed;  and  this  is 
called  final  judgment,  (h)  But  if  the  issue  be  in  fact,  and  was 
tried  In/ a  jury,  then  the  jury,  at  the  same  time  that  they  tried 
the  issue,  assessed  the  damages.  (*) !  In  this  case,  therefore, 
n®  writ  of  inquiry  is  necessary;  and  the  judgment  is  final  in 
the  first  instance,  and  to  the  same  effect  as  just  mentioned, 
viz.,  that  the  plaintiff  do  recover  the  damages  assessed.  Again, 
if  the  action  do  not  sound  in  damages,  the  judgment  is  in  this 
case  also  (in  general),  in  the  first  instance,  final ;  and  to  this 
effect,  that  the  plaintiff  recover  seisin  of  the  land,  etc.,  or  recover 
the  debt,  etc.  But  there  is,  besides  this,  in  mixed  actions,  a 
judgment  for  damages  also ;  and  this  is  either  given  at  the 
same  time  with  that  for  recovery  of  seisin,  if  the  damages  have 
been  assessed  by  a  jury, —  or,  if  not  so  assessed,  a  writ  of  in- 
quiry issues,  and  a  second  judgment  is  given  for  the  amount 
found  by  the  inquisition.  (&) 

The  issue  shall  next  be  supposed  to  be  decided  for  the  de- 
fendant. 

In  this  case,  if  the  issue,  whether  of  fact  or  law,  arise  on  a 
dilatory  plea,  the  judgment  is  that  the  writ  (or  Mil)  le  quashed, 
quod  fireve  (or  billa)  cassetur,  upon  such  pleas  as  are  in  abate- 
ment of  the  writ  or  bill, —  and  that  the  pleading  remain  with- 
out day  until,  etc.,  (Z)2 upon  such  pleas  as  are  in  suspension 
only ;  —  the  effect,  in  the  first  case,  of  course,  being  that  the 
suit  is  defeated,  but  with  liberty  to  the  plaintiff  to  prosecute 
a  better  writ  or  bill ;  in  the  second,  that  the  suit  is  suspended 

(h)  As  to  the  proceedings  on  a  writ  of  inquiry,  see  2  Arch.  Prac.  19. 

CO  Vide  supra,  p.  218. 

(fc)  2Saund.  44,  n.  4;  Booth,  19,  74,  76,  76. 

(I)  8  Rep.  69;  Reg.  PL  180;  1  Chitty,  458;  2  Arch.  Prac.  8. 

iGoggin  v.  O'Donnell,  62  111.  66;  way  Co.,  89   Tenn.  804;    Myers   v. 

Boggs  v.  Bindskoff,  23  111.  66;  Chase  Erwin,  20  Ohio,  382,  note. 

v.  Doming,  42  N.  H.  274;  Young  v.  ^Spaulding  v.  Lowe,  58  III  96. 
Gilles,  113.  Mass.  34;  Simpson  v.  Rail- 


§  129.]  PROCEEDINGS   IN   AN    ACTION.  239 

until  the  objection  be  removed.  If  the  issue  arise  upon  a 
declaration  or  peremptory  plea,  the  judgment  is,  in  general, 
that  the  plaintiff  take  nothing  by  Ms  writ  (or  bill),  and  that  the 
defendant  go  thereof  without  day,  etc.,  which  is  called  a  judg- 
ment of  nil  capiat  per  breve,  or  per  billam. 

What  has  been  said  as  to  the  different  forms  of  judgment 
relates  to  those  on  direct  issues.  Upon  an  issue  of  the  collat- 
eral or  incidental  kind  (ra)  (which  is  a  case  that  does  not  occur 
in  modern  practice),  the  judgment  is  sometimes  respondeat 
ouster;  in  other  cases,  quod  recuperet;  but  the  law  with  re- 
spect to  the  judgment  on  issues  of  this  kind  does  not  seem 
to  be,  in  every  instance,  clearly  settled,  (n) 

Judgment  has  hitherto  been  supposed  to  be  awarded  only 
upon  the  decision  of  an  issue.  There  are  several  cases,  how- 
ever, in  which  judgment  may  be  given,  though  no  issue  have 
arisen;  and  these  cases  will  now  require  notice.  In  the  de- 
scription given  in  this  chapter  of  the  manner  of  suit,  it  will 
be  observed  that  the  action  has  been  uniformly  supposed  to 
proceed  to  issue'  and  this  has  been  done  to  prevent  digression 
and  complexity.  But  an  action  may  be  cut  off  in  its  progress, 
and  come  to  premature  termination,  by  the  fault  of  one  of 
the  parties  in  failing  to  pursue  his  litigation ;  and  this  may 
happen  either  with  the  intention  of  abandoning  the  claim  or 
defense,  or  from  failing  to  follow  them  up,  within  the  periods 
which  the  practice  of  the  court,  in  each  particular  case,  pre- 
scribes. In  such  cases  the  opposite  party  becomes  victor  in 
the  suit,  as  well  as  where  an  issue  has  been  joined  and  is  de- 
cided in  his  favor;  and  is  at  once  entitled  to  judgment.  Thus, 
in  a  real  (though  not  in  a  personal)  action,  if  the  defendant 
holds  out  against  the  process,  judgment  may  be  given  against 
him  for  default  of  appearance,  (o)  So,  in  actions  real,  mixed,  or 
personal,  if,  after  appearance,  he  neither  pleads  nor  demurs; 
or  if,  after  plea,  he  fails  to  maintain  his  pleading  till  issue 
joined,  by  rejoinder,  rebutter,  etc.,  judgment  will  be  given 
against  him  for  want  of  plea;  which  is  called  judgment  by 
nil  dicit.1  So  if,  instead  of  a  plea,  his  attorney  says  he  is 

(m)  Vide  supra,  p.  209. 

(n)  Co.  Ent.  319;  Com.  Dig.,  Voucher  (B.  2);  2  Saund.  44,  n.  4;  Bac.  Ab.,  Pleas,  etc.,  N.  4 

(o)  Booth,  19,  73;  Com.  Dig.,  Pleader  (Y.  1);  2  Saund.  45,  n.  4. 

1  Kansas  City  Ry.  Co.  v.  Saunders,  98  Ala.  283;  Aurora  v.  West,  7  Wall  83. 


CAUSES   AND   FORMS    OF   ACTION.  [§   129. 

not  informed  of  any  answer  to  be  given  to  the  action,  judg- 
ment will  be  given  against  him;  and  it  is  in  that  case  called 
a  judgment  by  non  sum  informatus.  Again  —  instead  of  a 
plea,  he  may  choose  to  confess  the  action ;  or,  after  pleading, 
he  may,  at  any  time  before  trial,  both  confess  the  action 
and  withdraw  his  plea  or  other  allegations;  and  the  judgment 
against  him,  in  these  two  cases,  is  called  a  judgment  by  con- 
fession, or  by  confession  relicta  verificatione.^  On  the  other 
hand,  judgment  may  be  given  against  the  plaintiff \  in  any 
class  of  actions,  for  not  declaring,  or  replying,  or  surrejoining, 
etc.,  or  for  not  entering  the  issue ;  and  these  are  called  judg- 
ments of  non  pros,  (from  non  prosequitur).1  So,  if  he  chooses, 
at  any  stage  of  the  action,  after  appearance  and  before  judg- 
ment, to  say  that  he  "  will  not  farther  prosecute  his  suit,"  — 
or,  that  he  "  withdraws  his  suit,"  —  or  (in  case  of  plea  in 
abatement)  prays  that  his  "  writ "  or  "  bill "  "  may  be  quashed, 
that  he  may  sue  or  exhibit  a  better  one,"  —  there  is  judgment 
against  him  of  nolle  prosequi,  retraxit,  or  cassetur  breve,  or 
billa,  in  these  cases  respectively.  Again,  judgment  of  non- 
suit may  pass  against  the  plaintiff,  which  happens  when  on 
trial  by  jury  the  plaintiff,  on  being  called  or  demanded  at 
the  instance  of  the  defendant  to  be  present  in  court  while  the 
jury  give  their  verdict,  fails  to  make  his  appearance.  In  this 
case  no  verdict  is  given;  but  judgment  of  nonsuit  passes 
against  the  plaintiff.  So  if,  after  issue  is  joined,  the  plaintiff 
neglects  to  bring  such  issue  on  to  be  tried  in  due  time,  as 
limited  by  the  course  and  practice  of  the  court  in  the  particu- 
lar case,  judgment  will  also  be  given  against  him  for  this  de- 
fault ;  and  it  is  called  judgment  as  in  case  of  nonsuit.2 

These  judgments  by  default,  confession,  etc.,  when  given 
for  the  plaintiff",  are  generally  quod  recuperetj  and  may  be 
either  interlocutory  or  fin  al,  according  to  a  distinction  already 
explained.  For  the  defendant  the  form  generally  is  nil  ca- 
piat? 

1  See  3  Cooley's  Black.  (4th  ed)  296.    awarded.    The  demurrer  or  default 

2  See  p.  384.  note  1.  only  confesses  that  the  plaintiff  has 
8  State  v.  Peck,  60  Ma  498,  Ames'    a  cause  of  action  for  some  amount. 

Cases,  19.  Judgments  by  default  or  C.  &  R.  L  Ry.  Co.  v.  Ward,  16  III  522. 
nil  dicit  at  law  are  interlocutory  in  But  on  the  inquiry  of  damages  the 
all  cases  when  damages  are  to  be  defendant  may  introduce  evidence 


§  120.]  PROCEEDINGS    IN   AN   ACTION.  241 

Upon  judgment  in  most  personal  and  mixed  actions,  whether 
npon  issue  or  by  default,  confession,  etc.,  it  will  be  observed 
that  it  forms  part  of  the  adjudication  that  the  plaintiff  or  de- 
fendant recover  his  costs  of  suit  or  defense ;  which  costs  are 
taxed  by  an  officer  of  the  court  at  the  time  when  the  judg- 
ment is  given. 

There  is  generally  an  addition,  too — when  the  judgment  is 
for  the  plaintiff, —  that  the  defendant  "  be  in  mercy"  (in  mis- 
ericordia)',  that  is,  be  amerced  or  fined  for  his  delay  of  jus- 
tice; when  for  the  defendant,  that  the  plaintiff  be  in  mercy 
for  his  false  claim,  (p)  The  practice,  however,  of  imposing 
any  actual  amercement  has  been  long  quite  obsolete. 

Judgments  (like  the  pleadings)  were  formerly  pronounced 
in  open  court;  and  are  still  always  supposed  to  be  so.  But, 
by  a  relaxation  of  practice,  there  is  now  in  general,  except  in 
the  case  of  an  issue  in  law,  no  actual  delivery  of  judgment, 
either  in  court  or  elsewhere.  The  plaintiff  or  defendant,  when 
the  cause  is  in  such  a  state  that,  by  the  course  of  practice,  he 
is  entitled  to  judgment,  obtains  the  signature  or  allowance  of 
the  proper  officer  of  the  court,  expressing,  generally,  that 
judgment  is  given  in  his  favor;  and  this  is  called  signing  judg- 
ment, and  stands  in  the  place  of  its  actual  delivery  by  the . 
judges  themselves,  (g) 

Regularly  the  next  proceeding  is  to  enter  the  judgment  on 
record.  "Where  it  has  been  signed  after  trial  or  demurrer,  it 
will  be  remembered  that  the  proceedings  up  to  the  time  of 
issue  and  the  award  of  venire,  or  the  continuance  by  curia 
advisari  vult,  have  already  been  recorded,  (r)  It  will  remain, 

(p)  As  to  this  amercement,  see  Griesley's  Case,  8  Rep.  39,  59. 

(  q )  "  The  signing  of  the  judgment  is  but  the  leave  of  the  master  of  the  office  for  tha 
attorney  to  enter  the  judgment  for  his  client"  Styles,  Pract.  Reg.,  tit.  Judgment.  On 
judgments  by  nil  dicit,  in  the  king's  bench  and  common  pleas,  the  way  of  signing  judg- 
ment is  to  make  an  incipitur  of  the  declaration  on  stamped  paper,  and  get  it  signed  by  the 
clerk  of  the  judgments  in  the  king's  bench;  and  in  the  common  pleas,  at  the  prothono- 
taries'  office.  2  Arch.  Pract.,  p.  10;  Impey,  0.  P.  453.  On  judgments  after  verdict  in  the 
king's  bench,  the  master  signs  the  posted  in  taxing  costs;  and  this  is  the  signing  of  judg- 
ment. 1  Manning's  Exchequer,  352,  note  (o). 

(r)  But  see  supra,  p.  212.  note  y,  as  to  the  actual  practice  with  respect  to  issues  in  fact 
in  most  cases  of  making  an  incipitur  only. 

as  to  damages.    Bridges  v.  Stephens,  adopted   from    the    common    law. 

10  Brad.  369;  Briggs  v.  Snegham.  45  Thompson  v.  Worster,  114  U.  S.  109; 

Ind.  14;  Madison  Co.  v.  Smith,  95  111.  Cains  v.  Fisher,  1  Johns.  Ch.  8. 
328.      Defaults    in    chancery   were 


242  CAUSES   AND   FORMS   OF   ACTION.  [§  129. 

however,  to  enter  the  subsequent  proceedings  to  the  judgment 
inclusive,  which  is  called  entering  the  judgment.  This  is  done 
by  drawing  them  up  with  continuances,  etc.,  on  the  same  roll 
on  which  the  issue  was  entered  by  way  of  continuation  or 
farther  narrative  of  the  proceedings  there  already  recorded ; 
and  the  judgment  is  entered  in  such  form  as  the  attorney  for 
the  successful  party  conceives  to  be  legally  appropriate  to 
the  particular  case,  supposing  that  it  were  actually  pronounced 
by  the  court.  The  roll  when  complete  by  the  entry  of  final 
judgment  is  no  longer  called  the  issue  roll,  but  has  the  name 
of  the  judgment  roll,  (s)  and  is  deposited  and  filed  of  record  in 
the  treasury  of  the  court.  It  is  believed,  however,  that  this 
whole  proceeding  of  entering  the  judgment  on  record  is  in 
practice  usually  neglected.  Yet  there  are  several  cases  in 
which,  by  the  practice  of  the  court,  it  becomes  essential  after 
final  judgment  to  do  so,  and  in  which  it  is  therefore  actually 
done,  (t) 

"When  judgment  is  signed,  not  after  trial  or  demurrer,  but 
as  by  default,  confession,  etc.,  there  having  been  no  issue  roll 
yet  made  up,  the  whole  proceedings  to  the  judgment  inclu- 
sive are  to  be  entered  for  the  first  time  on  record.  This  is 
accordingly  done  by  the  attorney  upon  a  parchment  roll,  and 
upon  the  same  principles  as  to  the  form  of  entry  that  have 
been  already  stated  with  respect  to  recording  the  issue  and 
judgment  thereon,  (u) 

Of  the  form  of  entry  after  judgment  upon  issues  both  in 
law  and  fact,  and  also  after  judgment  by  default,  the  follow- 
ing are  examples : 

ENTRY  OF  JUDGMENT. 

For  the  Defendant. 
Upon  the  issue  in  law,  supra,  p.  213. 

\After  the  entry  of  the  issue,  as  in  p.  213,  the  proceedings  a/r* 
to  be  continued  on  the  roll,  as  follows:] 

At  which  day,  before  our  said  lord  the  king,  at  Westminster, 
come  the  parties  aforesaid,  by  their  respective  attorneys  afore- 

(«)  2  Arch.  Pract.  306. 

(t)  See  these  cases  enumerated,  2  Arch.  Pract.  206. 

(u)  However,  instead  of  pursuing  this,  the  strict  and  regular  course,  the  usual  practice 
is  ouly  to  enter  an  incipitur  ou  the  roll,  as  in  the  case  of  entering  an  issue  in  fact.  Vide 
»uprat  p.  212.  and  note  y;  1  Sel.  Pract.  342;  2  Arch.  Pract.  10. 


§   129.]  PROCEEDINGS    IN   AN   ACTION.  24:3 

said.  Whereupon,  all  and  singular  the  premises  being  seen, 
by  the  court  of  our  said  lord  the  king  now  here  fully  under- 
stood, and  mature  deliberation  being  thereupon  had,  it  appears 
to  the  said  court  here,  that  the  replication  aforesaid  and  the 
matters  therein  contained,  in  manner  and  form  as  the  same 
are  above  pleaded  and  set  forth,  are  not  sufficient,  in  law,  for 
the  said  A.  B.  to  have  or  maintain  his  aforesaid  action  against 
the  said  0.  D.  Therefore  it  is  considered  that  the  said  A.  B. 
take  nothing  by  his  said  writ,  but  that  he,  and  his  pledges 
to  prosecute,  be  in  mercy,  (x)  and  that  the  said  C.  D.  do  go 
thereof  without  day,  etc.  And  it  is  further  considered  by  his 
majesty's  court  here,  that  the  said  C.  D.  do  recover  against 

the  said  A.  B. pounds,  for  his  costs  and  charges  by  him 

laid  out  about  his  defense  in  this  behalf,  by  the  court  of  our 
said  lord  the  king  now  here,  adjudged  to  the  said  C.  D.,  and 
with  his  assent,  according  to  the  form  of  the  statute  in  such 
case  made  and  provided ;  and  that  the  said  C.  D.  have  execu- 
tion thereof,  etc.  (y) 

ENTRY   OF   JUDGMENT. 

For  the  Plaintiff. 
Upon  the  issue  in  fact,  supra,  p.  214.  after  trial  by  jury  in  London. 

[After  the  entry  of  the  issue  as  in  p.  214,  the  proceedings  a/re 
to  l>e  continued  on  the  roll  as  follows:'] 

Afterwards  the  process  thereof  is  continued  between  the 
parties  aforesaid  of  the  plea  aforesaid,  by  the  jury  being  res- 
pited between  them,  before  our  said  lord  the  king  at  West- 
minster, until ,  wheresoever  our  said  lord  the  king  shall 

then  be  in  England,  unless  the  Right  Honorable  Sir  Charles 
Abbott,  knight,  his  majesty's  chief  justice,  assigned  to  hold 
pleas  in  the  court  of  our  said  lord  the  king,  before  the  king 

himself,  shall  first  come  on ,  the day  of  ,  at  the 

guildhall  of  the  city  of  London,  according  to  the  form  of  the 
statute  in  such  case  made  and  provided,  by  reason  of  the  de- 
fault of  the  jurors,  because  none  of  them  did  appear.  (0)  At 
which  day,  before  our  said  lord  the  king  at  Westminster  afore- 
said, come  the  said  parties  aforesaid,  by  their  attorneys  afore- 
said. And  the  said  chief  justice,  before  whom  the  said  issue 
was  tried,  hath  sent  hither  his  record  had  before  him,  in  these 
words,  to  wit :  (a)  Afterwards,  that  is  to  say,  on  the  day  and 
at  the  place  within  contained,  before  the  Right  Honorable  Sir 
Charles  Abbott,  the  chief  justice  within  mentioned  (etc.,  as 

(x)  Vide  supra  as  to  mercy,  p.  341. 

(y)  Tidd's  Appendix,  ch.  xxxix. 

(z)  This  commencement  of  the  entry  refers  to  the  award  of  the  distringas;  as  to  which 
eee  supra,  p.  216. 

(a)  This  is  a  transcript  of  the  postea  from  the  back  of  the  nisi  print  record.  A*  to  the 
posted,  vide  supra,  p.  221. 


244  CAUSES   AND    FORMS    OF   ACTION.  [§  129. 

in  the  posted,  supra,  p.  221,  to  the  words  "forty  shillings"}. 
Therefore  it  is  considered  that  the  said  A.  B.  do  recover 
against  the  said  C.  D.  the  damages,  costs  and  charges  by  the 
said  jury  in  form  aforesaid  assessed,  and  also  — —  pounds  for 
his  costs  and  charges,  by  the  court  of  our  said  lord  the  king 
now  here  adjudged  of  increase  to  the  said  A.  B.,  and  with  his 
assent;  which  said  damages,  costs  and  charges,  in  the  whole, 
amount  to pounds.  And  the  said  C.  D.  in  mercy,  etc.  (5) 

ENTRY   OF   JUDGMENT. 

For  the  Plaintiff,  on  Nil  Dicit. 
Upon  the  declaration  in  covenant,  supra,  p.  158. 

As  yet  of Term,  in  the year  of  the  reign  of 

King  George  the  Fourth.    "Witness,  Sir  Charles  Ab- 
bott, Knight. 
to  wit,  A.  B.  puts  in  his  place  E.  F.,  his  attorney, 


against  C.  D.,  in  a  plea  of  breach  of  covenant. 

to  wit,  C.  D.  puts  in  his  place  G.  H.,  his  attorney,  at 

the  suit  of  the  said  A.  B.,  in  the  plea  aforesaid. 

to  wit,  C.  D.  was  summoned  to  answer  (etc.,  as  in  the 

declaration,  supra,  p.  158). 

And  the  said  C.  D.,  by ,  his  attorney,  comes  and 

defends  the  wrong  and  injury  when,  etc.,  and  says  nothing 
in  bar  or  preclusion  of  the  said  action  of  the  said  A.  B. ; 
whereby  the  said  A.  B.  remains  therein  undefended  against 
the  said  C.  D.  Wherefore  the  said  A.  B.  ought  to  recover 
against  the  said  C.  D.  his  damages  on  occasion  of  the  premises. 
But  because  it  is  unknown  to  the  court  of  our  said  lord  the 
king,  now  here,  what  damages  the  said  A.  B.  hath  sustained 
by  reason  of  the  premises,  the  sheriffs  are  commanded  (G)  that, 
by  the  oath  of  twelve  good  and  lawful  men  of  their  bailiwick, 
they  diligently  inquire  what  damages  the  said  A.  B.  hath  sus- 
tained as  well  by  reason  of  the  premises,  as  for  his  costs  and 
charges  by  him  about  his  suit  in  this  behalf  expended ;  and 
that  they  send  the  inquisition  which  they  shall  thereupon 

take,  to  our  said  lord  the  king,  on ,  wheresoever  our  said 

lord  the  king  shall  then  be  in  England,  under  their  seal,  and 
the  seals  of  those  by  whose  oath  they  shall  take  that  inquisi- 
tion, together  with  the  writ  of  our  said  lord  the  king  to  them 
thereupon  directed.  The  same  day  Is  given  to  the  said  A.  B., 
at  the  same  place.  At  which  day,  before  our  said  lord  the 
king  at  Westminster,  comes  the  said  A.  B.,  by  his  attorney 

aforesaid.  And  the  sheriffs  of  London,  to  wit, , 

esquire,  and ,  esquire,  now  here,  return  a  certain 

inquisition  indented,  taken  befdre  them  at  the  guildhall  of  the 

,    (6)  Tidd's  Appendix,  ch.  xxxix;  3  Bl.  Com.,  Appendix,  No.  II.;  5  Went.  52. 
(<0  This  is  the  award  of  the  writ  of  inquiry,  as  to  which,  vide  supra,  p.  239. 


§  130.]  PROCEEDINGS   IN    AN   ACTION.  245 

city  of  London,  in  the  parish  of ,  in  the  ward  of ,  in 

the  same  city,  on  the day  of ,  in  the year  of  the 

reign  of  our  said  lord  the  king,  by  the  oath  of  twelve  good 
ana  lawful  men  of  their  bailiwick;  by  which  it  is  found  that 
the  said  A.  B.  hath  sustained  damages  by  means  of  the  prem- 
ises to  fifty  pounds,  over  and  above  his  costs  and  charges,  by 
him  about  his  suit  in  this  behalf  expended,  and  for  those  costs 
and  charges  to  forty  shillings.  Therefore  it  is  considered  that 
the  said  A.  B.  do  recover  against  the  said  C.  D.  his  damages 

aforesaid,  by  the  said  inquisition  above  found,  and  also 

pounds,  for  his  said  costs  and  charges,  by  the  court  of  our  said 
lord  the  king  now  here  adjudged,  of  increase,  to  the  said  A.  B., 
and  with  his  assent ;  which  said  damages,  costs  and  charges, 

in  the  whole,  amount  to pounds.     And  the  said  C.  D.  in 

mercy,  etc.  (d) 

The  course  of  the  action,  till  the  entry  on  record  of  the  final 
judgment,  has  now  been  described ;  but  the  reader  will  not 
have  a  complete  view  of  the  history  of  a  suit  without  taking 
some  notice  of  two  other  subsequent  proceedings.  These  are, 
the  writ  of  execution  and  the  writ  of  error. 

§  130.  Writs  of  execution. —  Upon  judgment  the  success- 
ful party  is,  in  general,  entitled  to  execution,  to  put  in  force 
the  sentence  that  the  law  has  given.  For  this  purpose  he 
sues  out  a  writ,  addressed  to  the  sheriff,  commanding  him, 
according  to  the  nature  of  the  case,  either  to  give  the  plaint- 
iff possession  of  the  lands,  or  to  enforce  the  delivery  of  the 
chattel  which  was  the  subject  of  the  action,  or  to  levy  for 
plaintiff  the  debt  or  damages,  and  costs  recovered ;  or  to  levy 
for  the  defendant  his  costs ;  and  that  either  upon  the  body  of 
the  opposite  party,  his  lands  or  goods,  or,  in  some  cases,  upon 
his  body,  lands  and  goods ;  the  extent  and  manner  of  the 
execution  directed  always  depending  upon  the  nature  of  the 
judgment,  (e)  Like  the  judgment,  writs  of  execution  are  sup- 
posed to  be  actually  awarded  by  the  judges  in  court;  but  no 
such  award  is  in  general  actually  made.  The  attorney,  after 
signing  final  judgment,  sues  out  of  the  proper  office  a  writ  of 
execution,  in  the  form  to  which  he  conceives  he  would  be  en- 
titled, upon  such  judgment  as  he  has  entered,  if  such  entry  has 
been  actually  made, —  and  if  not  made,  then  upon  such  as  he 
thinks  he  is  entitled  to  enter;  and  he  does  this  (of  course)  upon 

(d)  Tidd's  Appendix,  ch.  xxxix;  1  Went.,  p.  244. 

(e)  For  further  information  on  this  subject,  see  3  BL  Com.  413. 


246  CAUSES   AND   FORMS    OF   ACTION.  [§  131. 

peril  that,  if  he  takes  a  wrong  execution,  the  proceeding  will  be 
illegal  and  void,  and  the  opposite  party  entitled  to  redress. 

§  131.  Writs  of  error.—  After  final  judgment  is  signed  the 
unsuccessful  party  may  bring  a  writ  of  error;  l  and  this,  if  ob- 
tained and  allowed  before  execution,  suspends  the  latter  pro- 
ceeding till  the  former  is  determined,  (f)  A  writ  of  error, 
like  an  original  writ,  is  sued  out  of  chancery,  directed  to  the 
judges  of  the  court  in  which  judgment  was  given,  and  com- 
manding them,  in  some  cases,  themselves  to  examine  the 
record ;  in  others  to  send  it  to  another  court  of  appellate  juris- 
diction to  be  examined,  in  order  that  some  alleged  error  in 
the  proceedings  may  be  corrected.  The  first  form  of  writ  — 
called  a  writ  of  error  coram  nobis  [or  vobis]  (g) — is  where 
the  alleged  error  consists  of  matter  of  fact;  the  second  — 
called  a  writ  of  error,  generally  —  where  it  consists  of  matter 
of  law} 

When  a  writ  of  error  is  obtained,  the  whole  proceedings,  to 
final  judgment  inclusive,  are  then  always  actually  entered  (if 
this  has  not  before  been  done)  on  record ;  and  the  object  of 
the  writ  of  error  is  to  reverse  the  judgment  for  some  error 
of.  fact  or  law  that  is  supposed  to  exist  in  the  proceedings  as 
so  recorded.*  It  will  be  proper  here  to  explain  in  what  such 
error  may  consist. 

(/)  As  to  the  allowance  of  a  writ  of  error,  see  2  Tidd,  1044  (4th  ed.). 
(0)  As  to  these  terms,  vide  2  Tidd,  1032  (4th  ed.). 

1 A  writ  of  error  was  formerly  an  record  upon  which  a  judgment  was 

original  writ  issuing  out  of  chancery,  given  in  another  court,  and  on  such 

but  in  modern  practice  it  is  a  judicial  examination  to  affirm  or  reverse  the 

writ  sued  out  of  the  appellate  tribu-  same  according  to  law.     Cohens  T. 

nal,  and  is  an  entirely  new  writ;  it  Virginia,  6  Wheat  264    It  was  not 

does  not  per  se  affect  the  judgment  the  proper  remedy  to  review  the  facts, 

which  may  be  executed  while  the  Generes  v.  Campbell,  11  Wall  193. 

writ  of  error  is  pending,  unless  a  2  Writs  of  error  to  remove  a  judg- 

supersedeas  issues  to  stay  proceed-  ment  to  the  supreme  court  of  the 

ings.  Suy dam  v.  Williamson,  20  How.  United  States  are,  under  act  of  con- 

437 ;  Yates  v.  People,  9  Johns.  896,  gress,  governed  by  the  principles  and 

6  Am.  Dec.  290,  Great  Op.  by  Great  usages  of  common  law.    Payne  v. 

Judges,  201.    It  is  a  writ  of  right  Niles,  20  How.  219. 

McClay    v.    Norris,    4    Gilm.    370;  'Richardson's    Ex'r  v.  Jones,   12 

Haines  v.  People,  97  111.  161.    A  writ  Gratt  53 ;  Bronson  v.  Schulton,  104 

of  error  has  been  defined  to  be  a  U.  8.  410;  Hillman  v.   Chester,   12 

commission  by  which  the  judges  of  Heisk.  84.    Judge  Clifford  says:  "It 

the  court  are  authorized  to  examine  a  is  laid  down  by  the  best  writers  on 


131.] 


PROCEEDINGS   IN   AN   ACTION. 


Where  an  issue  in  fact  has  been  decided,  there  is  (as  formerly 
observed)  no  appeal  in  the  English  law  from  its  decision,  (A) l 
except  in  the  way  of  motion  for  new  trial;  and  its  being 
wrongly  decided  is  not  error  in  that  technical  sense  to  which 


(h)  Supra,  p.  228. 

pleading  that  nothing  not  appearing 
on  the  record  can  be  considered,"  and 
cites  this  explanation  of  Stephen. 
Suydam  v.  Williamson,  20  How. 
437. 

1  It  is  said  that,  for  error  in  relation 
to  the  facts,  a  writ  of  error  is  not  the 
proper  remedy.  Generes  v.  Camp- 
bell, 11  Wall  193;  Pennock  v.  Dia- 
logue, 2  Pet  1.  But  this  must  be 
taken  in  a  restricted  sense.  In  mod- 
ern practice  the  sufficiency  of  the  evi- 
dence may  be  reviewed  on  error  by 
moving  for  a  new  trial  and  preserv- 
ing exception,  thus  making  the  error 
appear  of  record  by  reason  of  the 
motion  and  a  bill  of  exceptions,  after 
which  the  fault  may  be  corrected 
on  error  or  appeal.  The  remedies 
are  optional  Harris  v.  People,  97  EL 
161. 

Upon  a  motion  for  new  trial  and 
arrest  of  judgment,  the  court  has  the 
opportunity  to  correct  all  errors  and 
renders  unnecessary  such  a  remedy 
as  error  coram  nobis.  McKindley  v. 
Buck,  43  111.  488 ;  Freeman  on  Judgt, 
§  94 ;  Pickett's  Heirs  v.  Legerwood, 
7  Pet  144 ;  Life  Ass'n  of  America  v. 
Fassett,  102  III  315. 

Appeal  is  a  purely  statutory  pro- 
ceeding and  different  from  writ  of 
error  in  that  it  is  not  a  new  proceed- 
ing, but  a  continuation  of  the  case 
from  one  court  to  another,  and  must 
be  taken  within  a  specified  time,  and 
in  the  upper  court  the  whole  merits 
of  the  case  are  tried.  Moore  v.  Wait, 
1  Binn.  219;  Wright  v.  Guy,  10 
&  &  R  227 ;  Wiscart  v.  Dauchy,  3 
Dall.  321 ;  Hessing  v.  Attorney-Gen- 
eral, 104  111.  292 ;  Long  v.  Hitchcock, 


8  Ohio,  274;  Bassett  v.  Daniels,  10 
Ohio  St  617. 

The  bill  of  exceptions  was  author- 
ized by  statute  of  Edward  L,  and  has 
for  its  object  to  make  apparent  upon 
the  record,  by  the  certificate  of  the 
judge,  the  facts  and  incidents  of  the 
trial,  including  evidence,  instruction, 
motion  for  new  trial,  remarks  of 
counsel,  motions  to  exclude,  and  all 
those  acts  and  incidents  not  of  them- 
selves a  part  of  the  record.  3  Bou- 
vier's  Institutes,  §  3238;  3  Cooley's 
Black.  (3d  ed.)  372;  McCandless  v. 
McWha,  8  Harris,  183;  Turner  v. 
Turner,  17  Ohio  St  449 ;  McLaugh- 
lin  v.  Walsh,  3  Scam.  185 ;  Cureton 
v.  Westfield,  24  S.  C.  457;  Peck  v. 
Chouteau,  91  Mo.  138;  Tozer  v.  N.  Y. 
C.  &  H.  R  Co.,  105  N.  Y.  659 ;  House 
V.Alexander,  105  Ind.  109;  Oppen- 
heimer  v.  Barr,  71  la.  525 ;  Thomson 
v.  Madison  B.  &  A.  Asso.,  103  Ind. 
279.  As  to  what  the  bill  should  show, 
see  Goforth  v.  State,  22.  Tex.  App. 
405;  Wiley  v.  Logan,  95  N.  C.  358; 
People  v.  Coughlin,  67  Mich.  467,  and 
note  to  State  v.  Hope,  8  L.  R  A.  608. 

There  is  a  distinction  to  be  ob- 
served between  the  exclusion  of 
proper  and  the  reception  of  improper 
evidence.  Regarding,  exceptions  to 
the  exclusion  of  evidence,  see  Hath- 
away v.  Tinkham,  148  Mass.  85 ;  Plat- 
ner  v.  Plainer,  78  N.  Y.  90 ;  Florida 
R  Co.  v.  Smith,  88  U.  S.  513,  and  an 
extended  note  to  Shinners  v.  Propri- 
etors of  Locks  &  Canals,  12  L.  R  A. 
554, 

In  actual  practice  the  written  bill 
of  exceptions  is  made  up  after  the 
trial,  but  the  objections  and  excep- 


248 


CAUSES   AND   FOKMS    OF   ACTION. 


[§  131. 


a*  writ  of  error  refers.  So  if  a  matter  of  fact  should  exist 
which  was  not  brought  into  issue,  but  which,  if  brought  into 
issue,  would  have  led  to  a  different  judgment,  the  existence  of 
such  fact  does  not,  after  judgment,  amount  to  error  in  the 
proceedings.  For  example,  if  the  defendant  has  a  release,  but 
does  not  plead  it  in  bar,  its  existence  cannot,  after  judgment, 
on  the  ground  of  error  or  otherwise,  in  any  manner  be  brought 
forward.1  But  there  are  certain  facts  which  affect  the  validity 
and  regularity  of  the  legal  proceeding  itself:  such  as  the  de- 
fendant having  appeared  in  the  suit  while  under  age  by  attor- 
ney and  not  by  guardian; 2  or  the  plaintiff  or  defendant  having 
been  a  married  woman  when  the  suit  was  commenced.  Such 
facts  as  these,  however  late  discovered  and  alleged,  are  errors 
in  fact,  and  sufficient  to  reverse  the  judgment  upon  writ  of 
error.  To  such  cases,  the  writ  of  error  coram  nobis  applies, 
"  because  the  error  in  fact  is  not  the  error  of  the  judges,  and 
reversing  it  is  not  reversing  their  own  judgment."  (*)8 
But  the  most  frequent  case  of  error  is  when,  upon  the  face 

CO  2  Tidd,  1033;  1  Manning,  490. 


tions  must  be  made  and  taken  at  the 
time  the  occurrence  excepted  to 
takes  place ;  one  may  not  lie  by  and 
let  error  occur  and  then  take  advan- 
tage of  it  Hollensworth  v.  Koon, 
117111.511;  Puterbaugh's  PL  &  Pr. 
111.  &  Mich.,  tit  Bill  of  Exceptions. 
As  to  the  form  and  contents  of  the 
bill  of  exceptions,  Kline  v.  Wynne, 
10  Ohio  St  230 ;  Harvey  v.  Van  de 
Mark,  71  111.  117;  Friedland  v.  Mc- 
Neil, 33  Mich.  41;  Railway  Co.  v. 
Stewart,  95  U.  S.  279;  Ex  parte 
Crane,  5  Pet  197. 

The  bill  of  exceptions  must  be 
signed  by  a  judge  of  the  trial  court, 
but  in  case  of  .his  death  before  the 
time  for  signing  has  elapsed,  the 
remedy  is  different  See  for  law  in 
respective  jurisdictions,  Ally  v.  Mc- 
Cabe,  147  III  410 ;  Owens  v.  Paxton, 
106  N.  C.  480 ;  Galbraith  v.  Green,  13 
&  &  R.  85;  State  v.  Weiskittle,  61 
Md.  48 ;  Newton  v.  Boodee,  54  E.  C. 


L.  R.  795 ;  Bennett  v.  Pen.  &  O.  Co.,  32 
Eng.  L.  &  Eq.  318 ;  Leigh  v.  Arnor, 
89  Ark.  123 ;  Luifong  v.  Hendricks, 
2  Gratt  (Va.)  212. 

1  See  Richardson's  Ex'r  v.  Jones, 
12  Gratt  53. 

2  See  Higbie  v.  Comstock,  1  Denio, 
652;   Meredith  v.  Sanders,  2  Bibb, 
101. 

8  Error  coram  nobis  was  a  writ  of 
error  to  review  the  questions  in  the 
same  court  where  the  error  occurred. 
Hawkins  v.  Bower,  9  Gill  &  J.  428 ; 
Pickett's  Heirs  v.  Legerwood,  7  Pet 
144  See  New  Trial 

The  appropriate  use  of  the  writ  is 
to  enable  a  court  to  correct  those 
errors  of  its  own  which  precede  the 
rendition  of  judgment  Pickett's 
Heirs  v.  Legerwood,  7  Pet  144. 

This  writ  says  Judge  Cooley,  is 
called  the  writ  coram  nobis  or 
coram  vobis,  according  as  the  pro- 
ceedings are  in  the  king's  bench  or 


131.] 


PROCEEDINGS    IN   AN   ACTION. 


249 


of  the  record,  the  judges  appear  to  have  committed  a  mistake 
in  law.  This  may  be  by  having  wrongly  decided  an  issue  in 
law  brought  before  them  by  demurrer;  but  it  may  also  hap- 
pen in  other  ways.  As  formerly  stated,  (&)  the  judgment  will, 
in  general,  follow  success  in  the  issue.  It  is,  however,  a  prin- 
ciple necessary  to  be  understood,  in  order  to  have  a  right  ap- 
prehension of  the  nature  of  writs  of  error,  that  the  judges 
are,  in  contemplation  of  law,  bound,  before  in  any  case  they 
give  judgment,  to  examine  the  v)hole  record;  *  and  then  to  ad- 
judge either  for  the  plaintiff  or  defendant,  according  to  the 


(k)  Supra,  pp.  236,  237. 

common  pleas,  because  the  record  is 
stated  to  remain  before  us  (the  king) 
if  in  the  former,  and  before  you  (the 
judges)  if  in  the  latter.  Cooley's 
Black  (3d  ed.)  406.  There  is,  there- 
fore, in  this  country,  properly  speak- 
ing, no  such  thing  as  a  writ  of  error 
coram  nobis;  and  in  England  the 
writ  may  be  said  to  be  obsolete. 
Camp  v.  Bennett,  16  Wend.  48.  But 
though  in  this  country  the  name  of 
the  writ  be  lost  (Smith  v.  Kingsley, 
19  Wend.  620).  the  *vrit  itself  is  by 
no  means  obsolete,  though  generally 
it  has  been  superseded  by  motion. 
See  Freeman  on  Judgments,  §  94; 
McKindley  v.  Buck,  43  111.  488;  Jef- 
frey v.  Fitch,  46  Conn.  601 ;  Sanders 
v.  State,  85  Ind.  318,  44  Am.  Rep.  29 ; 
Adler  v.  State,  35  Ark.  517,  37  Am. 
Rep.  48.;  Dows  v.  Harper,  6  Ohio, 
518,  24  Am.  Dec.  270;  Beaubien  v. 
Hamilton,  4  111.  213 ;  State  v.  Cal- 
houn,  50  Kan.  523,  18  L.  R.  A.  838,  n. 
That  this  writ  will  reach  errors  of 
fact  only,  see  Hawkins  v.  Bowie,  9 
Gill  &  J.  428 ;  Roughton  v.  Browne, 
53  N.  C.  393 ;  Dinsmore  v.  Boyd,  6 
Lea,  689.  For  cases  in  which  the 
writ  has  been  used,  see  Latshaw  v. 
McNees,  50  Mo.  381;  Wood  v.  Col- 
well,  34  Pa.  92;  Ex  parte  Toney,  11 
Ma  661 ;  Mills  v.  Alexander,  21  Tex. 


154;  Giddings  v.  Steele,  28  id.  732,  91 
Am.  Dec.  336. 

Audita  querela  is  a  writ  to  prevent 
or  recall  an  execution,  which  has 
been  rarely  used  either  in  England  or 
in  this  country.  Unlike  coraw  nobt's, 
it  may  be  sustained  upon  some 
ground  which  occurred  after  the  ren- 
dition of  the  judgment,  which,  there- 
fore, the  defendant  had  no  oppor- 
tunity to  plead.  3  Cooley's  Black. 
(3d  ed.)  404 ;  Thatcher  v.  Gammon,  12 
Mass.  268 ;  Steele  v.  Boyd,  6  Leigh, 
547,  29  Am.  Dec.  218;  Longworth  v. 
Screven,  2  Hill  (S.  C.),  298,  27  Am. 
Dec.  381.  It  is  proper  and  customary 
to  proceed  by  motion  in  cases  where 
the  party  would  have  been  entitled 
to  audita  querela.  Smock  v.  Dade, 
5  Rand.  639,  16  Am.  Dec.  780 ;  Stan- 
iford  v.  Barry,  1  Aik.  321,  15  Am. 
Dec.  692,  and  notes,  citing  McDon- 
ald v.  Falvey,  18  Wis.  571 ;  Dunlap  T. 
Clements.  18  Ala,  778;  Gleason  v. 
Peck,  12  Vt  56 ;  Bryant  v.  Johnson, 
24  Me.  304;  Wetmore  v.  Law,  34 
Barb.  517;  Fox  v.  Witham,  9 
Allen,  572 ;  Pennsylvania  v.  Wheeling 
Bridge  Co.,  18  How.  421. 

1Suydam  v.  Williamson,  20  How. 
433 ;  Bank  of  United  States  v.  Smith, 
11  Wheat  171 ;  Curtiss,  J.,  dissenting, 
in  Scott  v.  Sanford,  19  How.  39a 


250  CAUSES  AND  FOKMS  OF  ACTION".  [§  131. 

legal  right,  as  it  may  on  the  whole  appear  —  notwithstanding 
or  without  regard  to  the  issue  in  law  or  fact  that  may  have 
been  raised  and  decided  between  the  parties ;  and  this  because 
the  pleader  may,  from  misapprehension,  have  passed  by  a 
material  question  of  law  without  taking  issue  upon  it.  There- 
fore, whenever,  upon  examination  of  the  whole  record,  right 
appears,  on  the  whole,  not  to  have  been  done,  and  judgment 
appears  to  have  ~been  given  for  one  of  the  parties  when  it  should 
have  been  given  for  the  other,  this  will  be  error  in  law.  And  it 
will  be  equally  error  whether  the  question  was  raised  on  de- 
murrer, or  the  issue  was  an  issue  in  fact,  or  there  was  no  issue; 
judgment  having  been  taken  by  default,  confession,  etc.  In 
all  these  cases,  indeed,  except  the  first,  the  judges  have  really 
committed  no  error ;  for  it  may  be  collected  from  preceding 
explanations,  that  no  record,  or  even  copy  of  the  proceedings, 
is  actually  brought  before  them  except  upon  demurrer ;  but 
with  respect  to  a  writ  of  error,  the  effect  is  the  same  as  if  the 
proceedings  had  all  actually  taken  place  and  been  recorded 
in  open  court  according  to  the  fiction  and  supposition  in 
law.  So,  on  the  same  principle,  there  will  be  error  in  law  if 
judgment  has  been  entered  in  a  wrong  form  inappropriate  to 
the  case ;  although,  as  we  have  seen,  the  judges  have  in  prac- 
tice nothing  to  do  with  the  entry  on  the  roll.  But  on  the 
other  hand,  nothing  will  be  error  in  law  that  does  not  appear 
on  the  face,  of  the  record;  for  matters  not  so  appearing  are 
not  supposed  to  have  entered  into  the  consideration  of  the 
judges.  (7)  Upon  error  m  law,  the  remedy  is  not  by  writ  of 
error  coram  nobis  (for  that  would  be  merely  to  make  the  same 
judges  reconsider  their  own  judgment),  but  by  a  writ  of  error 
requiring  the  record  to  be  sent  into  some  other  court  of  ap- 
pellate jurisdiction  that  the  error  may  be  there  corrected,  and 
called  a  writ  of  error  generally. 

With  respect  to  the  writ  of  error  of  this  latter  description, 
it  is  farther  to  be  observed  that  it  cannot  be  supported  unless 
the  error  in  law  be  of  a  substantial  kind.  For  as,  by  the  effect 
of  the  statutes  of  amendments  and  jeofails,  errors  of  mere 
form  are  no  ground  for  arresting  the  judgment,  (m)  so,  by  the 
-effect  of  the  same  statutes,  such  objections  are  now  insufficient 

(T)  2  Inst.  436. 
(m)  Supra,  p.  230. 


§  131.] 


PROCEEDINGS   IN   AN   ACTION. 


251 


to  found  a  writ  of  error;  though  at  common  law  the  case  was 
otherwise,  (n)1 

"When,  on  the  ground  of  some  error  in  law,  the  record  is  re- 
moved by  writ  of  error,  the  following  is  the  course  of  appeal 
among  the  different  courts:  From  the  common  pleas  the 
record  may  be  removed  into  the  court  of  king's  bench,  and 
from  thence,  by  a  new  writ  of  error,  into  the  house  of  lords; 
from  the  exchequer,  into  the  court  of  exchequer  chamber, 
held  before  the  lord  chancellor,  lord  treasurer  and  the  judges 
of  the  court  of  king's  bench  and  common  pleas,  and  from 
thence  into  the  house  of  lords ;  from  the  king's  bench,  in  pro- 
ceedings by  bill,  in  most  of  the  usual  actions,  into  the  court 
of  exchequer  chamber,  held  before  the  judges  of  the  common 
pleas,  and  barons  of  the  exchequer,  and  from  thence  into  the 


(n)  On  this  subject,  vide  3  BL  Com.  406,  7. 

1  Motions  to  strike:  Another  inci- 
dent of  the  trial  not  noticed  by  the 
author,  in  common  use  at  the  pres- 
ent time,  is  the  motion  to  strike 
pleading  from  the  files  or  to  strike 
out  parts  of  pleadings.  Pleas  merely 
to  the  damages  (Dermick  v.  Chap- 
man, 11  Johns.  132;  Laramore  v. 
Wells,  29  Ohio  St  13;  Millard  v. 
Thorn,  56  N.  Y.  405) ;  pleas  containing 
mere  evidence  (Bowen  v.  Aubry,  22 
Cal.  566 ;  McAlister  v.  Kuhn,  6  Otto, 
87),  argumentative  pleas,  or  irrele- 
vant pleas,  may  in  the  discretion  of 
the  court  be  stricken  out  (Salt  Lake 
City  Nat.  Bank  v.  Hendrickson,  11 
Vroom,  52 ;  Buell  v.  Lake,  8  la.  551), 
Pleas  improper  in  point  of  time 
{Price  v.  Sinclair,  13  Miss.  254 ;  Taylor 
v.  Hall,  20  Tex  211) ;  false  pleas,  or 
those  imputing  improper  action  to 
the  court  (Middleton  v.  Ames,  7  Vt 
168;  Stewart  v.  Hotchkiss,  2  Cow. 
€34),  may  also  be  stricken  out  A 
plea  which  is  entirely  improper  in 
the  particular  case,  or  one  amount- 
ing to  the  general  issue  (Wilkinson 
v.  Mosley,  30  Ala,  562;  HI.  Cent  Ry.  v. 
Johnson,  34  III  389),  selected  from  a 


large  number  found  in  an  excellent 
note  to  Best's  Right  to  Begin  and 
Reply,  §  73,  p.  128. 

If  repugnant  pleas  are  filed,  one 
should  be  stricken  out,  and  by  this 
remedy  the  court  may  control  the 
right  to  file  several  pleas.  Jackson  v. 
Stetson,  15  Mass.  48.  A  plea  amount- 
ing to  the  general  issue  may  be 
stricken  out.  Jackson  v.  Hobson,  4 
Scam.  418.  When  two  pleas  are  filed 
presenting  the  same  defense,  both 
good,  one  may  be  stricken  out  on 
motion.  Ringhouse  v.  Keener,  63  111, 
230;  Parkes  v.  Holmes,  22  id.  522. 

That  a  pleading  is  defective  is  no 
ground  of  itself  for  a  motion  to 
strike;  the  plea  must  in  some  man- 
ner be  improper.  If  improper,  it  may 
still  be  stricken  from  the  files, though 
the  facts  set  up  show  a  good  defense. 
Bemis  v.  Homer,  145  111.  567. 

The  party  cannot  escape  the  risk 
incident  to  dilatory  pleas  by  motion. 
Greer  v.  Young,  120  III  184. 

The  advantage  of  a  motion,  where 
proper,  is  that  errors  are  not  waived 
by  pleading  over,  nor  is  the  pleading 
admitted  by  a  motion. 


252 


CAUSES    AND   FORMS    OF   ACTION. 


[§  131. 


house  of  lords ;  in  proceedings  by  original,  into  the  house  of 
lords  in  the  first  instance.  (0) 

By  what  course  of  proceeding  the  error  in  the  record  is  dis- 
cussed and  corrected  in  the  appellate  court,  and  the  judgment 
reversed  or  affirmed,  it  is  not  material  to  the  purpose  of  the 
present  treatise  to  explain.  The  reader  who  wishes  for  infor- 
mation on  that  subject  may  be  referred  generally  to  the  many 
valuable  books  of  practice,  (p) l 


do)  3  Bl.  Com.  411. 

(p)  Vide  2  Tidd,  ch.  xliii,  etc. 

1  As  to  the  disposal  of  case  on  ap- 
peal: The  case  may  be  affirmed,  or 
affirmed  in  part  and  reversed  in  part, 
or  it  may  be  reversed  and  remanded 
for  another  hearing  or  for  further 
proceedings  (Garland  v.  Davis,  4  How. 
131);  or  reversed  simply  (Swarington 
v.  Pendleton,  4  S.  &  R  389) ;  or  a  new 
judgment  may  be  entered  (Pain  v. 


Cowdin,  17  Pick.  142;  Union  Nat. 
Bank  v.  Manistee  Lumber  Co.,  43  111. 
App.  525 ;  Mueller  v.  U.  S.  Mutual  Ins. 
Co.,  51  111.  App.  40 ;  Columbus,  P.  &  L 
R  Co.  v.  Simpson,  5  Ohio  St.  251). 

For  full  treatment  of  this  subject, 
see  Powell's  Appellate  Procedure  and 
Elliott's  Appellate  Procedure,  ch.  29. 


CLASSIFICATION  OF  RULES 

ACCORDING  TO  THE 

OBJECT  TO  BE  ATTAINED. 


1.  The  production  of  an  issue. 

2.  The  materiality  of  the  issue. 

3.  The  singleness  or  unity  of  the  issues. 

4.  Certainty  or  particularity  in  the  issue. 

5.  Which  prevent  obscurity  and  confusion. 

6.  Which  prevent  prolixity  and  delay. 

7.  Miscellaneous  rules  as  to  order  and  formal  struct- 

ure of  pleadings. 
17 


CHAPTER  VL 

OF  THE  PRINCIPAL  RULES  OF  PLEADING. 

§  132.  The  object  of  pleading.— The  account  of  the  course 
of  an  action  being  now  concluded,  and  a  view  thus  obtained  of 
the  general  form  and  manner  of  pleading,  and  its  connection 
with  other  parts  of  the  suit,  it  is  next  proposed  to  investigate 
its  principal  or  fundamental  rules,  and  to  explain  their  scope 
and  tendency  as  parts  of  an  entire  system.  For  this  purpose 
some  observations  shall  be  premised,  relative  to  the  manner  in 
which  that  system  was  formed  and  the  objects  which  it  con- 
templates. 

The  manner  of  allegation  in  our  courts  may  be  said  to  have 
been  first  methodically  formed  and  cultivated  as  a  science  in 
the  reign  of  Edward  I.  From  this  time  the  judges  began 
systematically  to  prescribe  and  enforce  certain  rules  of  state- 
ments, of  which  some  had  been  established  at  periods  consid- 
erably more  remote,  and  others  apparently  were  then,  from 
time  to  time,  first  introduced,  (a)  *  None  of  them  seem  to 
have  been  originally  of  legislative  enactment,  or  to  have  had 

(a)  See  Appendix,  note  (88). 

1  In  his  preface  the  author  points  applied  to  particular  forms  of  action ; 
out  that  he  was  the  first  to  develop  our  author  took  a  broader  view  of 
systematically  the  principles  of  the  the  rules  to  be  observed  in  framing 
science  of  pleading.  He  mentions  allegations,  irrespective  of  the  forms 
the  great  merit  of  Mr.  Chitty's  work,  of  action  or  particular  pleading.  It 
and  distinguishes  between  his  plan  is  therefore  entirely  consistent  with 
and  the  plan  of  this  work ;  and  while  the  claim  of  those  who  advocated 
it  is  a  very  natural  fact,  it  is  none  the  reform  procedure  that  they  ac- 
the  less  to  be  noticed,  that  while  the  cept  and  apply  the  rules  of  Stephen, 
work  of  Chitty  finds  its  most  useful  depending,  as  they  do,  not  upon  the 
field  in  those  jurisdictions  where  a  form  of  action,  but  upon  the  nature 
resemblance  to  the  English  forms  of  facts  to  be  alleged.  "It  is  as- 
of  action  is  retained,  the  work  of  sumed,"  says  Professor  Bliss,  "that 
Stephen  is  accepted  and  held  of  as  the  student  is  familiar  with  the  corn- 
high  authority  in  a  code  state  as  mon-law  system  of  law  and  equity 
elsewhere.  The  reason  is  plain.  Mr.  pleading.  If  not,  he  is  groping  in 
Chitty  explained  rules  of  pleading  as  the  dark."  Bliss'  Code  PL,  §  141.  It 


§  132.]  PRINCIPAL   KULES    OF   PLEADING.  255 

i 

any  authority  except  usage  or  judicial  regulation ;  but,  from 
the  general  perception  of  their  wisdom  and  utility,  they  ac- 
quired the  character  of  fixed  and  positive  institutions,  and 
grew  up  into  an  entire  and  connected  system  of  pleading. 
This  system,  which,  in  its  essential  parts,  still  remains  in  prac- 
tice unaltered,  appears  to  have  been  originally  devised  in  a 
view  to  certain  objects  or  results,  which  it  will  be  necessary, 
to  the  right  apprehension  of  the  subject  of  this  chapter,  here 
to  explain. 

The  pleadings  (as  appears  in  the  preceding  chapter)  are  so 
conducted  as  always  to  evolve  some  question  either  of  fact  or 
law,  disputed  between  the  parties,  and  mutually  proposed  and 
accepted  by  them  as  the  subject  for  decision,  and  the  question 
so  produced  is  called  the  issue,  (b) l 

As  the  object  of  all  pleading  or  judicial  allegation  is  to 
ascertain  the  subject  for  decision,  so  the  main  object  of  that 
system  of  pleading  established  in  the  common  law  of  England 
is  to  ascertain  it  by  the  prod  action  of  an  issue?  And  this 
appears  to  be  peculiar  to  that  system.  To  the  best  of  the  au- 
thor's information,  at  least,  it  is  unknown  in  the  present  prac- 
tice of  any  other  plan  of  judicature.  In  all  courts,  indeed, 
the  particular  subject  for  decision  must,  of  course,  be  in  some 
manner  developed  before  the  decision  can  take  place ;  but  the 
methods  generally  adopted  for  this  purpose  differ  widely  from, 
that  which  belongs  to  the  English  law. 

(6)  See  Appendix,  note  (39). 

was  in  reference  to  these  rules,  as  structive  as  to  the  regard  which  is  to 
afterward  developed  by  our  author,  be  paid  to  substance  rather  than 
that  Kent,  C.  J.,  said :  "  I  entertain  a  form.  Bayard  v.  Malcolm,  3  Johns, 
•decided  opinion  that  the  established  550,  3  Am.  Dec.  450. 
principles  of  pleading,  which  com-  *  Munday  v.  Vail,  34  N.  J.  L.  418; 
pose  what  is  called  its  science,  are  Reynolds  v.  Stockton,  140  U.  S.  256; 
rational,  concise,  luminous  and  ad-  Waterman  v.  Lawrence,  19  CaL  210 ; 
mirably  adapted  to  the  investigation  Simonton  v.  Winters,  5  Pet  141 ;  Ma- 
of  truth,  and  ought  consequently  to  guire  v.  Tyler,  47  Mo.  115;  Anderson 
be  very  cautiously  touched  by  the  v.  Oscamp,  10  Ind.  App.  166;  Max- 
hand  of  innovation."  Bayard  v.  Mai-  well's  Code  PI.  1. 
«omb,  1  Johns.  453-71.  2  Cook  v.  Scott,  1  Gilm.  333;  Bay- 
The  language  of  the  prevailing  ard  v.  Malcolm,  2  John.  550;  Super- 
opinions,  in  the  court  of  errors  where  visors  of  Kewaunee  Co.  v.  Decker, 
the  judgment  of  Judge  Kent  in  the  30  Wis.  624;  McFaul  v.  Ramsay,  20 
above  case  is  reversed,  is  most  in-  How.  523. 


256  PRINCIPAL   RULES   OF   PLEADING.  [§  133. 

By  the  general  course  of  all  other  judicatures,  the  parties 
are  allowed  to  make  their  statements  at  large  (as  it  may  be 
called),  and  with  no  view  to  the  extrication  of  the  precise 
question  in  controversy ;  and  it  consequently  becomes  neces- 
sary, before  the  court  can  proceed  to  decision,  to  review, 
collate  and  consider  the  opposed  effect  of  the  different  state- 
ments when  completed  on  either  side, —  to  distinguish  and  ex- 
tract the  points  mutually  admitted,  and  those  which,  though 
undisputed,  are  immaterial  to  the  cause, —  and  thus,  by  throw- 
ing off  all  unnecessary  matter,  to  arrive  at  length  at  the  re- 
quired selection  of  the  point  to  be  decided.  This  retrospect- 
ive development  is,  by  the  practice  of  most  courts,  privately 
made  by  each  of  the  parties  for  himself,  as  a  necessary  me- 
dium to  the  preparation  and  adjustment  of  his  proofs;  and 
is  also  afterwards  virtually  effected  by  the  judge  in  the  dis- 
charge of  his  general  duty  of  decision;  while  in  some  other 
styles  of  proceeding  the  course  is  different ;  the  point  for  de- 
cision being  selected  from  the  pleadings  by  an  act  of  the 
court,  or  its  officer,  and  judicially  promulgated  prior  to  the 
proof  or  trial.1  The  common  law  of  England  differs  (it  will 
be  observed)  fromt  both  methods,  by  obliging  the  parties  to- 
come  to  issue;  that  is,  so  to  plead  as  to  develop  some  ques- 
tion (or  issue)  Tyy  the  effect  of  their  own  allegations,  and  to 
agree  upon  this  question  as  the  point  for  decision  in  the  cause ; 
thus  rendering  unnecessary  any  retrospective  operation  on 
the  pleadings  for  the  purpose  of  ascertaining  the  matter  in 
controversy. 

§  133.  The  origin  of  coming  to  an  issue. —  The  author  is 
of  opinion  that  this  peculiarity  of  coming  to  issue  took  its 
rise  in  the  practice  of  oral  pleading.  It  seems  a  natural  in- 
cident of  that  practice  to  compel  the  pleaders  to  short  and 
terse  allegations,  applying  to  each  other  by  way  of  answer, 
in  somewhat  of  a  logical  form,  and  at  length  reducing  the 
controversy  to  a  precise  point.  For  while  the  pleading  was 
merely  oral,  and  not  committed  by  any  contemporaneous  rec- 
ord to  writing  (a  state  of  things  which  may  be  distinctly 
traced,  among  the  yet  extant  archives  of  the  early  continental 
jurisprudence),  the  court  and  the  pleaders  would  have  to  rely 
exclusively  on  their  memory  for  retaining  the  tenor  of  the 

1  Langdell's  Sum.  Eq.  PL,  §  41.    See,  also,  App.,  n.  54. 


§  133.]  PRINCIPAL   RULES   OF   PLEADING.  257 

discussion ;  and  the  development  of  some  precise  question  or 
issue  would  then  be  a  very  convenient  practice,  because  it 
would  prevent  the  necessity  of  reviewing  the  different  state- 
ments, and  leave  no  burthen  on  the  memory  but  that  of  re- 
taining the  question  itself  so  developed.  And  even  after 
the  practice  of  recording  was  introduced,  the  same  brief  and 
logical  forms  of  allegation  would  naturally  continue  to  be  ac- 
ceptable, while  the  pleadings  were  still  viva  voce,  and  com- 
mitted to  record  on  the  inconvenient  plan  of  contemporary 
transcription,  (d) 

A.  co-operative  reason  for  coming  to  issue  was  the  variety 
of  the  modes  of  decision  which  the  law  assigned  to  different 
kinds  of  question.  The  various  modes  enumerated  in  the 
first  chapter,  as  still  recognized  in  practice,  were,  in  the  days- 
of  oral  pleading,  in  full  vigor  and  observance,  and  evidently 
made  it  necessary  to  settle  publicly  between  the  parties  the 
precise  point  on  which  their  controversy  turned.  For  on  the 
nature  of  this  depended  the  very  manner  of  the  subsequent 
decision,  and  the  form  of  proceeding  to  be  instituted  for  that 
purpose.  As  questions  of  law  were  decided  by  the  court,  and 
matters  of  fact  referred  to  other  kinds  of  investigation,  it  was, 
in  the  first  place,  necessary  to  settle  whether  the  question  in 
the  cause  or  issue  was  a  matter  of  law  or  fact.  Again,  if  it 
happened  to  be  a  matter  of  fact,  it  required  to  be  developed 
in  a  form  sufficiently  specific  to  show  what  was  the  method 
of  trial  appropriate  to  the  case.  And  unless  the  state  of  the 
question  were  thus  adjusted  between  the  parties,  it  is  evident 
that  they  would  not  have  known  whether  they  were  to  put 
themselves  on  the  judgment  of  the  court  or  to  go  to  trial ;  nor. 
in  the  latter  case,  whether  they  were  to  prepare  themselves 
for  trial  by  jury,  or  for  one  of  the  other  various  modes  of  de- 
ciding matter  of  fact. 

To  the  opinion  that  this  distinctive  feature  of  the  English 
pleading  was  derived  from  the  practice  of  oral  allegation,  and 
from  that  of  applying  different  forms  of  trial  to  the  deter- 
mination of  different  kinds  of  question,  it  may,  perhaps,  be 
objected  that  both  these  practices  anciently  prevailed  not 
only  in  England  but  among  the  continental  nations ;  among 
whom,  nevertheless,  the  method  of  coming  to  issue  is  now 

GO  See  Appendix,  note  (40). 


258  PRINCIPAL   RULES    OF   PLEADING.  [§  134. 

unknown.  This  objection,  however,  is  capable  of  a  satisfac- 
tory answer.  On  the  continent  the  ancient  system  of  judi- 
cature, of  which  these  practices  formed  a  part,  was,  at  early 
periods,  supplanted  by  the  methods  of  the  civil  law,  in  which 
the  pleadings  were  written,  (e)  and  there  was  but  one  form  of 
trial,  viz.,  a  trial  by  the  judge  himself,  upon  examination  of 
instruments  and  witnesses  adduced  in  evidence  before  him.  (f) 
On  the  other  hand,  in  the  courts  of  Westminster,  the  law  of 
trial  still  remains  almost  without  a  change ;  and  with  respect 
to  oral  pleading,  though  it  at  length  grew  out  of  fashion 
there,  it  gave  place,  not  to  allegations  formed  upon  the  prin- 
ciples of  the  imperial  practice,  but  to  supposed  transcriptions 
from  the  record,  the  effect  of  which  (as  explained  in  the  first 
chapter)  has  been  to  preserve,  in  these  written  pleadings,  the 
style  and  method  of  those  which  were  delivered  viva  voce  at 
the  bar  of  the  court. 

But  whatever  may  be  the  origin  and  reason  of  the  method 
of  coming  to  issue,  it  is  at  least  certain  that  that  method  has 
been  substantially  practiced  in  the  English  pleading  from  the 
earliest  period  to  which  any  of  the  now  existing  sources  of 
information  refer;  and  from  the  work  of  Glanville  on  the 
Laws  of  England,  it  may  clearly  be  shown  to  have  existed,  in 
effect,  in  the  reign  of  Henry  II.  The  term  itself,  of  "  issue,"  * 
though  perhaps  somewhat  less  ancient,  yet  occurs  as  early 
as  the  commencement  of  the  year-books ;  (A)  and  from  the 
same  period,  at  least,  if  not  an  earlier  one,  the  production  of 
the  issue  has  been  not  only  the  constant  effect,  but  the  pro- 
fessed aim  and  object  of  pleading. 

§  134.  Singleness  of  issues. —  It  was  not,  however,  the  only 
object.  It  was  found  that  though  the  parties  should  arrive 
at  an  issue,  that  is,  at  some  point  affirmed  on  one  side  and 
denied  on  the  .other,  and  mutually  proposed  and  accepted  by 
them  as  the  subject  for  decision,  it  might  yet  happen  that  the 
point  was  immaterial;  that  is,  unfit  to  decide  the  action.  This, 
of  course,  rendered  the  issue  useless.  When  it  occurred,  the 

(e)  See  Appendix,  note  (41). 
(/)  Fortescue  de  laud.,  ch.  20. 
(A)  See  Appendix,  note  (42). 

1  Simon  ton  v.  Winter,  5  Pet  149;         2  AS  to   several  issues,  see  post, 
Eberhardt  v.   Sanger,   51  Wis.   72;     p.  356. 
Havelock  v.  Rockwood,  8  Term,  27& 


§  134.]  PBINCIPAL   RULES    OF   PLEADING.  259 

proper  remedy,  as  in  the  practice  of  the  present  day,  was  a 
repleader.1  But  it  was  also  naturally  an  object  to  avoid  its 
occurrence,  and  so  to  direct  the  pleadings  as  to  secure  the 
production,  not  only  of  an  issue,  but  a  material  one. 

Again,  it  was  found  to  be  in  the  nature  of  many  controver- 
sies to  admit  of  more  than  one  question  fit  to  decide  the  ac- 
tion; or  in  other  words,  actions  would  often  tend  to  more 
than  one  material  issue.  This  might  happen,  in  the  first 
place,  in  causes  which  involved  several  distinct  claims.  Thus, 
if  an  action  be  brought,  founded  on  two  separate  demands, 
for  example,  two  bonds  executed  by  the  defendant  in  favor  of 
the  plaintiff,  the  issue  may  arise  as  to  one  of  them  whether  it 
be  not  discharged  by  a  subsequent  release ;  as  to  the  other, 
whether  it  were  not  executed  under  duress  of  imprisonment, 
which  would  make  it  voidable  in  law.  So  there  may  be  more 
than  one  material  issue  in  causes  which  involve  only  a  single 
claim?  Thus,  in  an  action  brought  upon  one  bond  only, 
two  issues  of  the  same  kind  may  arise,  viz.,  whether  it  were 
not  executed  under  duress  of  imprisonment,  or  whether,  at 
any  rate,  it  were  not,  after  its  execution,  released  by  the 
plaintiff.  In  the  case  of  several  claims,  justice  clearly  requires 
that  if  the  cause  tend  to  several  issues  distinctly  applicable  to 
each,  these  several  issues  should  all  be  raised  and  decided; 
for  otherwise  there  would  be  no  determination  of  the  whole 
matters  in  demand.  But  in  the  case  of  a  single  claim  the 
same  consideration  does  not  apply ;  for  the  decision  of  any 
one  of  the  material  issues  that  may  arise  upon  it  will  be  suffi- 
cient to  dispose  of  the  entire  claim.  Thus,  in  the  first  ex- 
ample given,  the  finding  that  one  bond  was  released,  or  that 
it  was  not  released,  would  leave  the  demand  on  the  other 
wholly  untouched.  On  the  other  hand,  in  the  second  ex- 
ample, if  the  party  be  put  to  his  election  either  to  rely  on 
the  fact  of  the  execution  under  duress  or  on  the  release,  either 
of  the  questions  which  he  so  elects  will  lead  to  an  issue  suffi- 

1  See  Repleader,  supra.  verey  to  a  single  issue."    Bliss'  Code 

2  It  is  quite  evident  that  there  is  a    PL,  §  142.    This  idea  is  contrary  to 
misapprehension  among  code  writers    that  expressed  by  the  text    A  cause 
as  to  the  idea  of  the  singleness  of  is-    may  have  several  issues,  but  each  is- 
sue sought.    Thus  it  is  said,  "  It  is  the  '  sue  must  be  single.    Clearwater  v. 
boast  of  the  common-law  pleaders    Meredith,  1  Wall  26. 

that  their  system  reduces  the  contro- 


260  PRINCIPAL   EULES   OF   PLEADING.  [§  135. 

cient  to  decide  the  whole  claim.  While  several  issues,  there- 
fore, must  of  necessity  bo  allowed  in  respect  of  several  sub- 
jects of  suit,  the  allowance  of  more  than  one  issue  in  respect 
of  each  subject  of  suit  is,  in  some  degree,  a  question  of  expe- 
diency.1 Those  who  founded  the  system  of  pleading  took 
the  course  of  not  allowing  more  than  one,  and  the  motives 
which  led  to  this  course  are  sufficiently  obvious.  For  reasons 
assigned  in  another  place,  it  was  of  considerable  importance 
to  the  judges  in  those  remote  times,  when  the  contention  was 
conducted  orally,  to  simplify  and  abbreviate  the  process  as 
much  as  possible;  and  it  was  in  this  view,  no  doubt,  that  it 
was  found  expedient  to  establish  the  principle  of  confining 
the  pleaders  to  a  single  issue  in  respect  of  each  single  claim, 
allowing,  at  the  same  time,  from  necessity,  of  several  issues, 
when  each  related  to  a  distinct  subject  of  demand.  But 
whatever  the  reason,  it  is  clear  that  in  point  of  fact  this  prin- 
ciple was  very  early  recognized  in  pleading,  and  that  the  issue 
was  required  not  only  to  be  material  but  single. 

§  135.  Certainty  of  the  issue.  —  There  was  still  another 
quality  essential  to  the  issue  —  that  of  certainty.  This  word  is 
technically  used  in  pleading,  in  the  two  different  senses  of 
distinctness  and  particularity.  It  is  here  employed  in  the  lat- 
ter sense  only;  and,  when  it  is  said  that  the  issue  must  be 
certain,  the  meaning  is  that  it  must  be  particular  or  specific 
as  opposed  to  undue  generality.2 

One  of  the  causes  which  have  been  above  assigned  for  the 
practice  of  coming  to  issue  made  it  also  necessary  to  come  to 
issue  with  some  degree  of  certainty.  The  variety  in  the  modes 
of  decision  required  that  the  issue  should  be  sufficiently  cer- 
tain to  show  whether  the  point  in  controversy  consisted  of 
law  or  fact;  and  if  the  latter,  so  far  to  show  its  nature  as  to 
ascertain  by  what  form  of  trial  it  ought  to  be  decided.8  But 
a  certainty  still  greater  than  this  was  required  by  a  cause  of 
another  kind,  viz.,  the  nature  of  the  original  constitution  of  the 


.  Sturgis  v.  Burton,  8  Ohio  St  Nat  Bank,  121  id.  582;  I'Anson  v, 

215,  72  Am.  Dec.  582  ;  Whitney  v.  C.  Stuart,  1  T.  R.  748,  2  Sm.  Ld.  Cas. 

&  N.  W.  R  Co.,  27  Wis.  327  ;  Wilson  987,  and  notes. 

v.  Saltiel,  61  Cal.  209.  3  See  The  King  v.  Cook,  2  Barn.  & 

2  O.  &  M.  Ry.  v.  Van  Gelder,  149  Cres.  871. 
Ill  663  ;  Pitts'  Sons'  Mfg.  Co.  v.  Com. 


§  135.]  PRINCIPAL   RULES   OF   PLEADING.  261 

trial  ly  jury.  It  is  a  matter  clear  beyond  dispute  (but  one 
that  has  perhaps  been  too  little  noticed  in  works  that  treat  of 
the  origin  of  our  laws)  that  the  jury  anciently  consisted  of 
persons  who  were1  witnesses  to  the  facts,  or  at  least  in  some 
measure  personally  cognizant  of  them;  and  who,  consequently, 
in  their  verdict,  gave  not  (as  now)  the  conclusion  of  their  judg- 
ment upon  facts  proved  before  them  in  the  cause,  but  their  tes- 
timony as  to  facts  which  they  had  antecedently  known.  (£) 
Accordingly,  the  venirefacias  issued  to  summon  a  jury,  in  those 
days,  did  not  (as  at  present)  direct  the  jurors  to  be  summoned 
from  the  body  of  the  county,  but  from  the  immediate  neighbor- 
hood where  the  facts  occurred,  and  from  among  those  persons 
who  best  knew  the  truth  of  the  matter.  And  the  only  means 
that  the  sheriff  himself  had  of  knowing  what  was  the  matter 
in  controversy,  so  as  to  be  in  a  condition  to  obey  the  writ, 
appears  to  have  been  the  venirefacias  itself ;  which  then  stated 
the  nature  of  the  issue,  instead  of  being  confined  (as  now)  to  a 
short  statement  of  the  form  of  the  action,  (n)  In  this  state 
of  things,  it  was  evidently  necessary  that  the  issue  should  be 
sufficiently  certain  to  show  specifically  the  nature  of  the  ques- 
tion of  fact  to  be  tried.  Unless  it  showed  (for  example)  at 
what  place  the  alleged  matter  was  said  to  have  occurred,  it 
would  not  appear  into  what  county  the  venire  should  be  sent, 
nor  from  what  neighborhood  the  jury  were  to  be  selected.  So, 
if  it  did  not  specify  the  time  and  other  particulars  of  the  alleged 
transaction,  the  sheriff  would  have  no  sufficient  guide  for  sum- 
moning, in  obedience  to  the  venire,  persons  able,  of  their  own 
knowledge,  to  testify  upon  that  matter.  For  all  these  reasons, 
and  probably  for  others  also,  connected  with  the  general  objects 
of  precision  and  clearness,  (o)  it  was  considered  as  one  of  the 
essential  qualities  of  the  issue  that  it  should  be  certain'  and 
the  certainty  was  generally  to  be  of  the  degree  indicated  by 
the  preceding  considerations.  In  modern  times,  as  the  jurors 
have  ceased  to  be  of  the  nature  of  witnesses,  and  are  taken, 
generally,  from  the  body  of  the  county,  it  is  no  longer  neces- 
sary to  shape  the  issue  for  the  information  of  the  summoning 

(0  See  Appendix,  note  (43). 

(n)  Vide  Bract.,  p.  309  b,  310  a,  etc. 

(o)  It  is  laid  down  by  Bracton,  oportet  quod  petens  rem  designet  quam  petit;  videlicet 
qualitatem,  etc.,  item  quantitatem,  etc.  Certam  enim  rem  oportet  deducere  injudicium, 
ne  contingat  judicium  esse  delusorium  vel  obscurum,  etc.  Bract.  431o. 


262  PRINCIPAL    EULES   OF   PLEADING.  [§  135. 

officer;  and,  accordingly,  the  venire  facias  no  longer  even  sets 
the  issue  forth.  But,  as  the  parties  now  prove  their  facts  by 
the  adduction  of  evidence  before  the  jury,  and  have  conse- 
quently to  provide  themselves  with  the  proper  documents  and 
witnesses,  it  is  as  essential  that  they  should  each  be  apprised 
of  the  specific  nature  of  the  question  to  be  tried  as  it  for- 
merly was  that  the  sheriff  should  be  so  instructed ;  and  the 
particularity  which  was  once  required  for  the  information  of 
that  officer  now  serves  for  the  guidance  of  the  parties  them- 
selves in  preparing  their  proofs,  (p) 

On  the  whole,  therefore,  the  author  conceives  the  chief  ob- 
jects of  pleading  to  be  these :  that  the  parties  le  brought  to 
issue,  and  that  the  issue  so  produced  be  material,  single  and 
certain  in  its  quality.  In  addition  to  these,  however,  the  sys- 
tem of  pleading  has  always  pursued  those  general  objects  also, 
which  every  enlightened  plan  of  judicature  professes  to  re- 
gard—  the  avoidance  of  obscurity  and  confusion,  of  prolixity 
and  delay.  Accordingly,  the  whole  science  of  pleading,  when 
carefully  analyzed,  will  be  found  to  reduce  itself  to  certain 
principal  or  primary  rules,  tending,  for  the  most  part,  to  one 
or  other  of  the  objects  above  enumerated,  and  apparently  de- 
vised in  reference  to  those  objects ;  while  there  are  some  few 
remaining  rules  of  an  anomalous  description  that  appear  to 
belong  to  other  miscellaneous  principles.  'It  is  proposed  to 
collect  and  investigate  these  principal  rules,  and  to  subject 
them  to  a  distribution,  conformable  to  the  distinctions  that 
thus  exist  between  them  in  point  of  origin  and  object.  The 
following  chapters  will  therefore  treat  — 

I.  Of  rules  which  tend  simply  to  the  production  of  an  issue. 

II.  Of  rules  which  tend  to  secure  the  materiality  of  the 
issue. 

III.  Of  rules  which  tend  to  produce  singlenesss  or  unity  in 
the  issue. 

IV.  Of  rules  which  tend  to  produce  certainty  or  particular- 
ity in  the  issue. 

Y.  Of  rules  which  tend  to  prevent  obscurity  and  confusion 
in  pleading. 

(p)  As  to  this  latter  or  modern  reason  for  certainty,  see  Collett  v.  Lord  Keith,  2  East, 
870;  J'Anson  v.  Stuart,  1  T.  R.  743;  Holmes  v.  Catesby,  1  Taunt.  543. 


§  135.]  PRINCIPAL   RULES   OF   PLEADING.  263 

VI.  Of  rules  which  tend  to  prevent  prolixity  and  delay  in 
pleading. 

VII.  Of  certain  miscellaneous  rules,  (q) 

The  discussion  of  these  principal  rules  will  incidentally  in- 
volve the  consideration  of  many  other  rules  and  principles  of 
a  kind  subordinate  to  the  first,  but  extensive,  nevertheless,  and 
important  in  their  application ;  and  thus  will  be  laid  before 
the  reader  an  entire  though  general  view  of  the  whole  system 
of  pleading,  and  of  the  relations  which  connect  its  different 
parts  with  each  other. 

(3)  See  Appendix,  note  (44). 

NOTE. —  The  attention  of  the  reader  is  especially  directed  to  the  statement 
of  the  author  in  the  Appendix,  note  44,  that  he  is  the  first  to  formulate  these 
rules,  and  to  the  fact  that  though  lacking  in  authority  then  they  are  not  so 
now,  having  been  recognized,  adopted  and  universally  approved  by  courts 
and  jurists. 

The  editor  has  taken  occasion  to  separate  chapter  two  of  the  original 
work  into  chapters  by  making  each  principal  rule  the  subject  of  a  chapter. 


CHAPTER  VII. 

OF  RULES  WHICH  TEND  SIMPLY  TO  THE  PRODUCTION  OF  AN 

ISSUE. 

§  136.  Upon  examination  of  the  process  or  system  of  alle- 
gation by  which  the  parties  are  brought  to  issue,  as  that  pro- 
cess is  described  in  the  first  chapter,  it  will  be  found  to  resolve 
itself  into  the  following  fundamental  rules  or  principles:  First, 
that  after  the  declaration  the  parties  must  at  each  stage  demur , 
or  plead  ~by  way  of  traverse  or  by  way  of  confession  and  avoid- 
ance; secondly,  that  upon  a  traverse  issue  must  be  tendered;  (r) 
lastly,  that  the  issue  when  well  tendered  must  be  accepted.  Either 
by  virtue  of  the  first  rule  a  demurrer  takes  place  which  is  a 
tender  of  an  issue  in  law,  or,  by  the  joint  operation  of  the  two 
first,  the  tender  of  an  issue  in  fact;  and  then  by  the  last  of  these 
rules  the  issue  so  tendered,  whether  in  fact  or  in  law,  is  ac- 
cepted and  becomes  finally  complete.  It  is  by  these  rules,  there- 
fore, that  the  production  of  an  issue  is  effected,  and  these  will 
consequently  form  the  subject  of  the  following  section. 

RULE  L 

§  137.  After  the  declaration  [and  after  disposition  of  dila- 
tory pleadings],  the  parties  must  at  each  stage  demur,  or 
plead  by  way  of  traverse,  or  by  way  of  confession  and  avoid- 
ance.1— 

This  rule  has  two  branches: 

1.  The  party  must  demur ,  or  plead.  One  or  other  of  these 
courses  he  is  bound  to  take  (while  he  means  to  maintain  his 
action  or  defense),  until  issue  be  tendered.  If  he  does  neither, 
but  confesses  the  right  of  the  adverse  party,  or  says  nothing, 
the  court  immediately  gives  judgment  for  his  adversary;  in 
the  former  case,  as  by  confession, —  in  the  latter  by  non  pros. 
or  nil  dicit.  (s) 

(r)  With  respect  to  demurrer,  it  will  be  remembered  that  it  necessarily  implies  a  tender  of 
issue. 

(«)  As  to  the  nature  of  these  judgments,  vide  supra,  pp.  239-840. 

1  The  mode  of  disposing  of  pleadings  by  a  motion  to  strike  from  the  files 
was  not  then  in  vogue.  See  ante,  p.  251,  note  1. 


§  138.]        RULES   WHICH    TEND   TO   PRODUCTION   OF   ISSUE.  265 

2.  If  the  party  pleads,  it  must  either  be  by  way  of  traverse, 
or  of  confession  and  avoidance.  If  his  pleading  amount  to 
neither  of  these  modes  of  answer,  it  is  open  to  demurrer  on 
that  ground,  (t]  * 

Such  is  the  effect  of  this  rule,  generally  and  briefly  consid- 
ered. But  for  its  complete  illustration  it  will  be  necessary 
to  enter  much  more  deeply  into  the  subject,  and  to  consider 
at  large  the  doctrines  that  relate  both  to  demurrers  and  to 
pleadings. 

§  138.  Of  demurrer. — Under  this  head  it  is  intended  to 
treat,  1,  of  the  nature  and  properties  of  a  demurrer ;  2,  of  the 
effect  of  passing  a  fault  by,  without  demurrer,  and  pleading 
over ;  3,  of  the  considerations  which  determine  the  pleader  in 
his  election  to  demur  or  plead. 

1.  Of  the  nature  and  properties  of  a  demurrer. 

A  demurrer  may  be  for  insufficiency  either  in  substance  or 
reform; 2  that  is,  it  may  be  either  on  the  ground  that  the  case 
shown  by  the  opposite  party  is  essentially  insufficient,  or  on 
the  ground  that  it  is  stated  in  an  inartificial  manner;  for 
"  the  law  requires  in  every  plea  "  (and  the  observation  equally 
applies  to  all  other  pleadings)  "  two  things :  the  one,  that  it 
be  in  matter  sufficient — the  other,  that  it  be  deduced  and 
expressed  according  to  the  forms  of  law ;  and  if  either  the  one 
or  the  other  of  these  be  wanting,  it  is  cause  of  demurrer."  (u) 
And  we  may  here  take  occasion  to  remark  that  a  violation  of 
any  of  the  rules  of  pleading  that  will  be  hereafter  stated  is, 
in  general,  ground  for  demurrer;  and  such  fault  occasionally 
amounts  to  matter  of  substance,  but  usually  to  matter  of  form 
only. 

(*)  Reg.  Plac.  59;  1  Tidd,  682;  21  Hen.  6, 12;  5  Hen.  7, 13,  a,  14,  a,  b. 
(u)  Per  Lord  Hobart,  Colt  v.  Bishop  of  Coventry,  Hob.  164. 

1  See  Merceron  v.  Dowson,  5  Barn.  Artcher,  1  Hill,  266 ;  Van  Etten  v. 

&  Cres.  479.    A  plea  may  deny  all  Hurst,  6  id.  811;  Chandler  v.  Lin- 

the  facts,  or  it  may  single  out  some  coin,  52  III  75. 

one  material  fact  and  traverse  that,  2  Insufficiency  of  pleading  must  be 

or  it  may  confess  all  and  set  forth  taken    advantage  of   by  demurrer, 

new  facts  in  avoidance.    Hopkins  v.  "Van  Sickle  v.  Keith.  88  Iowa,  9;  Be- 

Medley,  97  III  402.    But  it  must  do  mis  v.  Homer,  145  IlL  567.    Improper 

one  or  the  other,  and  cannot  do  both,  pleas  may  be  stricken  out  on  motion. 

Landis  v.  People,  89  IlL  79 ;  Conger  See  Motion  to  Strike. 
T.  Johnson,  2  Denio,  96;  Brown  v. 


266  KULES   WHICH   TEND   TO   PRODUCTION   OF   ISSUE.        [§  139. 

§  139.  Forms  of  demurrer. —  A  demurrer,  as  in  its  nature 
so  also  in  its  form,  is  of  two  kinds :  it  is  either  general  or  special. 
A  general  demurrer  excepts  to  the  sufficiency  in  general  terms 
without  showing  specifically  the  nature  of  the  objection;1  a 
special  demurrer  adds  to  this  a  specification  of  the  particular 
ground  of  exception,  (a?)  Of  both  these  forms  the  reader  has 
already  had  examples  in  the  first  chapter.  A  general  demurrer 
is  sufficient  where  the  objection  is  on  matter  of  substance.  A 
special  demurrer  is  necessary  where  it  turns  on  matter  of  form 
only ; 2  that  is,  where,  notwithstanding  such  objection,  enough 
appears  to  entitle  the  opposite  party  to  judgment,  as  far  as 
relates  to  the  merits  of  the  cause.  For  by  two  statutes,  27 
Elizabeth,  chapter  5,  and  4  Anne,  chapter  16,  passed  in  a  view 
to  the  discouragement  of  merely  formal  objections,  it  is  pro- 
vided, in  nearly  the  same  terms,  that  the  judges  "  shall  give 
judgment  according  as  the  very  right  of  the  cause  and  matter 
in  law  shall  appear  unto  them,  without  regarding  any  imperfec- 
tion, omission,  defect  or  want  of  form,  except  those  only  which 
the  party  demurring  shall  specially  and  particularly  set  down 
and  express,  together  with  his  demurrer,  as  causes  of  the 
same ; "  the  latter  statute  adding  this  proviso :  "  so  as  suffi- 
cient matter  appear  in  the  said  pleadings  upon  which  the 
court  may  give  judgment  according  to  the  very  right  of  the 
cause."  Since  these  statutes,  therefore,  no  mere  matter  of 
form  can  be  objected  on  a  general  demurrer;  but  the  de- 
murrer must  be  in  the  special  form,  and  the  objection  specific- 
ally stated,  (s)  But,  on  the  other  hand,  it  is  to  be  observed 
that  under  a  special  demurrer  the  party  may,  on  the  argu- 
ment, not  only  take  advantage  of  the  particular  faults  which 
his  demurrer  specifies,  but  also  of  all  such  objections  in  sub- 
stance, or  regarding  "  the  very  right  of  the  cause "  (as  the 
statutes  express  it),  as  do  not  require,  under  those  statutes, 

(x)  Co.  Lltt.  72,  a;  Reg.  Plac.  125, 126;  Bac.  Ab.,  Pleas,  etc.,  n.  5. 

(«)  For  examples  of  cases  where  a  special  demurrer  Is  considered  as  necessary,  and 
where,  on  the  other  hand,  a  general  one  is  sufficient,  vide  Buckley  v.  Kenyon,  10  East,  139; 
Bow  dell  T.  Parsons,  id.  359;  Bolton  v.  Bishop  of  Carlisle,  2  H.  BL  259;  Bach  v.  Owen,  5  T.  R. 
409. 

1  Tyler  v.  Hand,  7  How.  573.  stance,  if  it  is  technically  defective  a 

2Rudd    v.    Darling,    64   Vt    456.    special  demurrer  should  be  sustained. 

Through  a  declaration  be  good  in  sub-    O.  &  M.  R.  Co.  v.  People,  149  I1L  663. 


§  140.]        EULES   WHICH    TEND   TO   PEODUCTIOX   OF   ISSUE.  267 

to  be  particularly  set  down,  (a) l  It  follows,  therefore,  that 
unless  the  objection  be  clearly  of  this  substantial  kind,  it  is 
the  safer  course,  in  all  cases,  to  demur  specially.  Yet  where 
a  general  demurrer  is  plainly  sufficient,  it  is  more  usually 
adopted  in  practice,  because  the  effect  of  the  special  form 
being  to  apprise  the  opposite  party  more  distinctly  of  the 
nature  of  the  objection,  it  is  attended  with  the  inconvenience 
of  enabling  him  to  prepare  to  maintain  his  pleading  in  argu- 
ment, or  of  leading  him  to  apply  the  earlier  to  amend.  "With 
respect  to  the  degree  of  particularity  with  which,  under  these 
statutes,  the  special  demurrer  must  assign  the  ground  of  ob- 
jection, it  may  be  observed  that  it  is  not  sufficient  to  object, 
in  general  terms,  that  the  pleading  is  "  uncertain,  defective, 
informal,"  or  the  like,  but  it  is  necessary  to  show  in  what  re- 
spect uncertain,  defective,  or  informal.  (5) 2  The  concluding 
words,  therefore,  in  the  example  formerly  given,  "and  also 
that  the  said  declaration  is,  in  other  respects,  uncertain,  in- 
formal, and  insufficient"  (though  these,  or  some  others  of 
similar  import,  are  usually  added),  are  inoperative  and  use- 
less, (d) 

§  140.  With  respect  to  the  effect  of  a  demurrer. — 
.  (a)  It  is,  first,  a  rule  that  a  demurrer  admits  all  such  matters 
of  fact  as  are  sufficiently  pleaded,  (e)  The  meaning  of  this 
rule  is  that  the  party,  having  had  his  option  whether  to  plead 
or  demur,  shall  be  taken,  in  adopting  the  latter  alternative,  to 
admit  that  he  has  no  ground  for  denial  or  traverse ;  which  (as 
formerly  shown)  is  one  of  the  kinds  of  pleading.  A.  demurrer 
is  consequently  an  admission  that  the  facts  alleged  are  true ; 
and  therefore  the  only  question  for  the  court  is  whether,  as- 
suming such  facts  to  be  true,  they  sustain  the  case  of  the 
party  by  whom  they  are  alleged.  It  will  be  observed,  how- 
ever, that  the  rule  is  laid  down  with  this  qualification :  that 
the  matter  of  fact  be  sufficiently  pleaded.*  For,  if  it  be  not 

(a)  1  Chitty,  642. 

(6)  1  Saund.  161,  n.  1,  837  b,  n.  8. 

(d)  See  Appendix,  note  (45). 

(e)  Bac.  Ab.,  Pleas,  etc.  (N.)  3;  Com.  Dig.,  Pleader  (Q.  6);  Nowlan  T.  Geddes,  1  East,  634; 
Gundry  v.  Felthram,  1  T.  B.  834. 

1  State  v.  Peck,  60  Me.  498;  Davies    Cases,  19;  Kipp  v.  Bell,  86  III.  577; 
v.  Gibson,  2  Ark.  117.  Holmes  v.  C.  &  A.  Ry.,  94  id.  439. 

8  State  v.  Peck,  61  Me.  498,  Ames'       3  See   Cook  v.   Rome   Brick   Co. 


268  KULES   WHICH   TEND   TO   PEODUCTION    OF    ISSUE.        [§  140. 

pleaded  in  a  formal  and  sufficient  manner,  it  is  said  that  a 
demurrer,  in  this  case,  is  no  admission  of  the  fact.  (#) l  But 
this  is  to  be  understood  as  subject  to  the  alterations  that  have 
been  introduced  into  the  law  of  demurrer  by  the  statutes  al- 
ready mentioned ;  and  therefore,  if  the  demurrer  be  general, 
instead  of  special,  it  amounts,  as  it  is  said,  to  a  confession, 
though  the  matter  be  informally  pleaded,  (h)  * 

(b)  Again,  U  is  a,  rule  that,  on  demurer,  the  court  'will  con- 
sider the  whole  record,  and  give  judgment  for  the  party  who,  on 
the  whole,  appears  to  be  entitled  to  it.  (i)  *  Thus,  on  demurrer 
to  the  replication,  if  the  court  think  the  replication  bad,  but 
perceive  a  substantial  fault  in  the  plea,  they  will  give  judg- 
ment, not  for  the  defendant,  but  the  plaintiff,  (&)4  provided 
the  declaration  be  good ;  but  if  the  declaration  also  be  bad  in 
substance,  then,  upon  the  same  principle,  judgment  would  be 
given  for  the  defendant.  (l)b  This  rule  belongs  to  the  general 
principle  stated  in  the  first  chapter,  (m)  that  when  judgment 
is  to  be  given,  whether  the  issue  be  in  law  or  fact,  and  whether 

(0)  Com.  Dig.,  Pleader  (Q.  6). 

(h)  1  Saund.  337  b,  n.  8;  1  Arch.  818. 

(1)  Com.  Dig.,  Pleader  (M.  1),  (M.  2);  Bac.  Ab.,  Pleas,  etc.,  A.  N.  8;  Piggott's  Case,  5 Rep. 
89  a;  1  Saund.  285,  n.  5;  Foster  v.  Jackson,  Hob.  56;  Anon.,  2  Wild.  150;  Le  Bret  v.  Papillon, 
4  East,  502. 

(fc)  Anon.,  2  Wils.  150. 

CO  Piggott's  Case,  5  Rep.  29  a  [Ames1  Cases,  22]. 

(m)  Vide  tupra,  p.  249. 

(Ala.),  12  S.  Rep.  918;  O'Rourk  v.  C.  Ry.,  156  Mass.  262;  B.  &  O.  Ry.  v. 
Sioux,  4  So.  Dak.  41,  19  L.  R.  A,  Harris,  12  Wall  65.  A  special  de- 
789;  Tyler  v.  Hand,  7  How.  573;  Sulli-  murrer  is  general  to  everything  ex- 
van  v.  Iron  Silver  Mine  Co.,  109  cept  that  to  which  it  is  filed  and 
U.  S.  550;  Pullman  Palace  Car  Co.  v.  cannot  be  carried  back.  Kent  v. 
Mo.  Pac.  R  Co.,  115  U.  S.  587;  Kellogg  Miles,  65  Vt  582. 
v.  Larkin,  3  Pinney,  123, 56  Am.  Dec.  3  See  Aurora  v.  West,  7  Wall  82; 
164;  Mallan  v.  May,  11  M.  &  W.  653;  Cook  v.  Graham,  3  Cranch,  229; 
State  v.  School  Board,  76  Wis.  177;  United  States  v.  Arthur,  5  id.  257; 
Bennett  v.  Mclntire,  121  Ind.  231,  6  Townsend  v.  Jemison,  7  How.  706; 
L.R.  A.  736;  Arensv.  Wier,  89111.  25;  Ferguson  v.  Meredith,  1  WalL  25; 
Ebersole  v.  First  Nat.  Bank,  36  III  Anon.,  2  Wilson,  150,  Ames'  Cases, 
App.  267;  Scofield  v.  Whitelegge,  49  24. 

N.  Y.  259.    Only  facts  alleged  are  ad-  4See  Safford  v.  Miller,  59  III  205; 

mitted,not  conclusions  or  inferences.  Illinois  Fire  Ins.  Co.  v.  Stanton,  57  id. 

Id.  359;  Fort  Dearborn  Lodge  v.  Klein, 

l  See  above  cases.  115  id.  177;    A.  &  O.  Canal  Co.  v. 

-Tidd's  Pr.  649;  United  States  v.  Leitch,  4  Denio,  65. 

Arthur.  5  Cranch,  259;  Steffe  v.  Old  5  People  v.  Crabb,  156  III  155. 


§  140.]        ECLES   WHICH    TEND   TO   PRODUCTION   OF   ISSUE.  2G9 

the  cause  have  proceeded  to  issue  or  not,  the  court  is  always 
bound  to  examine  the  whole  record  and  adjudge  for  the 
plaintiff  or  defendant,  according  to  the  legal  right,  as  it  may 
on  the  whole  appear.1  It  is,  however,  subject  to  the  following 
exceptions :  First,  if  the  plaintiff  demur  to  a  plea  in  abatement, 
and  the  court  decide  against  the  plea,  they  will  give  judgment 
of  respondeat  ouster  without  regard  to  any  defect  in  the  dec- 
laration, (ri)*  Secondly,  the  court  will  not  look  back  into  the 
record  to  adjudge  in  favor  of  an  apparent  right  in  the  plaintiff, 
unless  the  plaintiff  have  himself  put  his  action  upon  that  ground. 
Thus,  where,  on  a  covenant  to  perform  an  award,  and  not  to 
prevent  the  arbitrators  from  making  an  award,  the  plaintiff 
declared  in  covenant,  and  assigned  as  a  breach  that  the  de- 
fendant would  not  pay  the  sum  awarded,  and  the  defendant 
pleaded  that,  before  the  award  made,  he  revoked,  by  deed, 
the  authority  of  the  arbitrators,  to  which  the  plaintiff  de- 
murred, the  court  held  the  plea  good  as  being  a  sufficient 
answer  to  the  breach  alleged,  and  therefore  gave  judgment  for 
the  defendant,  although  they  also  were  of  opinion  that  the 
matter  stated  in  the  plea  would  have  entitled  the  plaintiff  to 
maintain  his  action  if  he  had  alleged,  by  way  of  breach,  that 
the  defendant  prevented  the  arbitrators  from  making  their 
award,  (o)  Lastly,  the  court,  in  examining  the  whole  record 
to  adjudge  according  to  the  apparent  right,  will  consider  only 
the  right  in  matter  of  substance,  and  not  in  respect  of  mere 
form,  such  as  should  have  been  the  subject  of  special  demur- 
rer.3 Thus,  where  the  declaration  was  open  to  an  objection 
of  form,  such  as  should  have  been  brought  forward  by  special 
demurrer, —  the  plea  bad  in  substance, —  and  the  defendant  de- 

(n)  Belasyse  v.  Hester,  Lutw.  1596;  Routh  v.  Weddell,  id.  1667;  Hastrop  v.  Hastings,  1 
Salk.  212;  Rich  v.  Pilkington,  Garth.  172. 
(o)  Marsh  v.  Bulteel,  5  Barn.  &  Aid.  507. 

1  Auburn  Co.  v.  Leitch,  4  Den.  65 ;  6  B.   &    C.  216,    Ames'  Cases,  28 ; 

Shaw  v.  Tobias,  3  N.  Y.  188 ;  Dupree  Dickson  v.  Wilkinson,  3  How.  57. 
v.   Blake,   148  111.   453 ;    Murphy  v.        2  Ryan  v>  May,  14  111.  49 ;  Hunter 

Richards,  5  Watts  &  S.  279;   Fort  v.  Bilyeu,  39  id.  370;   Crawford  v. 

Dearborn  Lodge  v.  Klein,  115  111.  177.  Slade,  9  Ala.  887,  44  Am.  Dec.  463; 

The  court  has  only  to  deal  with  its  State  v.  Hamlin,  47  Conn.  118;  Myers 

own  record.    Pac.  R  Co.  v.  Mo.  Pac.  v.  Erwin,  20  Ohio,  382,  n. 
R.  Co.,  11  U.  S.  505 ;  Davis  v.  Penton,        3  Baltimore  &  O.  R.  Co.  v.  Harris, 

18  12  Wall.  65 ;  Aurora  v.  West,  7  id.  82. 


270  EULES    WHICH   TEND    TO   PRODUCTION   OF   ISSUE.        [§  141. 

murred  to  the  replication,  the  court  gave  judgment  for  the 
plaintiff  in  respect  of  the  insufficiency  of  the  plea  without  re- 
gard to  the  formal  defect  in  the  declaration,  (p) l 

§  141.  Pleading  over  without  demurrer. —  2. -Next  is  to 
be  considered  the  effect  of  pleading  over  without  demurrer. 

It  has  been  shown  that  it  is  the  effect  of  a  demurrer  to  ad- 
mit the  truth  of  all  matters  of  fact  sufficiently  pleaded  on  the 
other  side;  but  it  cannot  be  said,  e  converse,  that  it  is  the 
effect  of  a  pleading  to  admit  the  sufficiency  in  law  of  the  facts 
adversely  alleged.  On  the  contrary,  it  has  been  seen  that 
upon  a  demurrer  arising  at  a  subsequent  stage  of  the  plead- 
ing, the  court  will  take  into  consideration,  retrospectively, 
the  sufficiency  in  law  of  matters  to  which  an  answer  in  fact 
had  been  given.  And  in  the  first  chapter  it  was  shown2  that 
even  after  an  issue  in  fact,  and  verdict  thereon,  the  court  are 
bound  to  give  judgment  on  the  whole  record,  and  therefore 
to  examine  the  sufficiency  in  law  of  all  allegations  through 
the  whole  series  of  the  pleadings;  and,  accordingly,  that  ad- 
vantage may  often  be  taken  by  either  party  of  a  legal  insuf- 
ficiency in  the  pleading  on  the  other  side,  either  by  motion 
in  arrest  of  judgment,  or  motion  for  judgment  non  obstanU 
veredicto,  or  writ  of  error,  or  appeal,*  according  to  the  circum- 
stances of  the  case. 

It  thus  appears,  then,  that  in  many  cases  a  party,  though 
he  has  pleaded  over  without  demurring,  may,  nevertheless, 
afterwards  avail  himself  of  an  insufficiency  in  the  pleading  of 
his  adversary.4  But  this  is  not  universally  true.  For,  first,  it 
is  to  be  observed  that  faults  in  the  pleading  are,  in  some  cases, 

(p)  Humphrey  v.  Bethily,  2  Vent.  198-222. 

1  A  demurrer  to  one  pleading  will  Klein,  115  id.  177.     It  is  generally 
not  be  carried  back  to  another  to  said  that  a  demm-rer  will  not  be 
which  it  did  not  profess  to  be  an  an-  carried  back  of  the  general  issue, 
swer  and  with  which  it  has  no  con-  Dearborn  v.   Kent,   14  Wend.  183; 
nection.    Ryan  v.  May,   14  III  49;  Coinpton  v.  People,  86  HI.  176.    But 
Hunter  v.  Bilyeu,  39«id.  368.  this  position  is  not  tenable  when  the 

2  Ordinarily  a  demurrer  to  a  plead-  declaration  is  substantially  defective 
ing  which  is  held  good  cannot  be  so  as  not  to  be  good  after  verdict 
carried  back  to  a  previous  defective  Auburn  &  O.  Co.  v.  Leitch,  4  Den.  65; 
pleading.      Dearborn    v.    Kent,    14  Shaw  v.  Tobias,  3  N.  Y.  188. 
Wend.  183.    But  if  the  declaration  8  Western  Assurance  Co.  v.Koontz, 
is  materially  and  fatally  defective  17  Ind.  App.  54. 

the  demurrer  will  be  carried  back.        4  Pardey    v.    Meclianicsville,  101 
People  v.  City  of  Spring  Valley,  129    Iowa,  266. 
m.  169;   Fort  Dearborn  Lodge  v. 


§  142.]        RULES   WHICH    TEND   TO   PRODUCTION   OF   ISSUE.  271 

aided  by  pleading  over,  (s)1  Thus,  in  an  action  of  trespass  for 
taking  a  hook,  where  the  plaintiff  omitted  to  allege  in  the 
declaration  that  it  was  Ms  hook,  or  even  that  it  was  in  his 
possession,  and  the  defendant  pleaded  a  matter  in  confession 
and  avoidance,  justifying  his  taking  the  hook  out  of  the  plaint- 
iff's hand,  the  court,  on  motion  in  arrest  of  judgment,  held, 
that  as  the  plea  itself  showed  that  the  hook  was  in  the  pos- 
session of  the  plaintiff,  the  objection,  which  would  otherwise 
have  been  fatal,  was  cured.  (£)  And,  with  respect  to  all  objec- 
tions of  form,  it  is  laid  down  as  a  general  proposition,  "  that 
if  a  man  pleads  over  he  shall  never  take  advantage  of  any 
slip  committed  in  the  pleading  of  the  other  side,  which  he 
could  not  take  advantage  of  upon  a  general  demurrer."  (u) 
§  142.  Aider  by  verdict. —  faults  in  the  pleading  are,  in 
some  cases,  aided  by  a  verdict,  (a?) 2  Thus,  if  the  grant  of  a  re- 
version, a  rent  charge,  an  advowson,  or  any  other  heredita- 
ment which  lies  in  grant,  and  can  only  be  conveyed  by  deed, 
be  pleaded,  such  grant  ought  to  have  been  alleged  to  have 
been  made  by  deed;  and  if  not  so  alleged,  it  will  be  ground  of 
demurrer;  but  if  the  opposite  party,  instead  of  demurring, 
pleads  over,  and  issue  be  taken  upon  the  grant,  and  the  jury 
find  that  the  grant  was  made,  the  verdict  aids  or  cures  the 
imperfection  in  the  pleading;  and  it  cannot  be  objected  in  ar- 
rest of  judgment  or  by  writ  of  error,  (y)  The  extent  and 
principle  of  this  rule  of  aider  by  verdict  is  thus  explained  in 
a  modern  decision  of  the  court  of  king's  bench :  "  Where  a 
matter  is  so  essentially  necessary  to  be  proved,  that,  had  it 
not  been  given  in  evidence,  the  jury  could  not  have  given 
such  a  verdict,  there  the  want  of  stating  that  matter  in  ex- 

(«)  Com.  Dig.,  Pleader  (C.  85),  (E.  37);  Co.  Litt.  803  b;  Pract.  Reg.  851;  Glasscock  7. 
Morgan,  2  Salk.  519. 

(0  Anon.,  Sid.  184,  cited  Bac.  Ab.,  Trespass,  p.  603. 

(«)  Per  Holt,  C.  J.,  Anon.,  2  Salk.  519;  Bac.  Ab.,  Pleas,  etc.,  822;  6  Barn.  &  Aid.  29. 

(*)  Com.  Dig.,  Pleader  (C.  87);  1  Saund.  228,  n.  1;  Weston  v.  Mason,  3  Burr.  1725;  Spieres 
r.  Parker,  1  T.  R.  141;  Johnston  v.  Button,  id.  545;  Nerot  v.  Wallace,  8  T.  R.  25;  Jackson  v. 
Pesked,  1  M.  &  S.  234;  Campbell  v.  Lewis,  3  Barn.  &  Aid.  392;  Keyworth  v.  Hill,  id.  685; 
Pippett  v.  Hearn,  5  Barn.  &  Aid.  634. 

(y)  1  Saund.  228  b;  laghtfoot  v.  Brightman,  Hutt.  54. 

»See  Fowle  v.  Welsh,  1  Barn.  &  202;  Keegan  v.  Kinnare,  123  id.  293; 

Ores.  229;  Fletcher  v.  Pogson,  8  id.  1  Chitty,  PL  (14th  Am.  ed.)  673;  Ben- 

192.  nett  v.  Edwards,  7  Barn.  &  Cres.  702 ; 

»Helmuth  v.  Bell,  150  111.  263;  A.,  Harris  v.  Beard,  4  Bing.  646;  Nurse 

T.  &  S.  F.  R  Co.  v.  Feehan,  149  id.  v.  Willis,  4  Barn.  &  Ad.  739. 


272  BULES   WHICH   TEND    TO   PRODUCTION   OF    ISSUE.        [§  142. 

press  terras  in  a  declaration,  provided  it  contains  terms  suffi- 
ciently general  to  comprehend  it  in  fair  and  reasonable 
intendment,  will  be  cured  by  a  verdict ;  and  where  a  general 
allegation  must,  in  fair  construction,  so  far  require  to  be 
restricted,  that  no  judge  and  no  jury  could  have  properly 
treated  it  in  an  unrestrained  sense,  it  may  reasonably  be 
presumed,  after  verdict,  that  it  was  so  restrained  at  the 
trial."  (z)1  In  entire  accordance  with  this  are  the  observations 
of  Mr.  Sergeant  Williams :  "  Where  there  is  any  defect,  imper- 
fection or  omission  in  any  pleading,  whether  in  substance  or 
form,  which  would  have  been  a  fatal  objection  upon  demur- 
rer, yet  if  the  issue  joined  be  such  as  necessarily  required,  on 
the  trial,  proof  of  the  facts  so  defectively  or  imperfectly  stated 
or  omitted,  and  without  which  it  is  not  to  be  presumed  that 
either  the  judge  would  direct  the  jury  to  give,  or  the  jury 
would  have  given,  the  verdict,  such  defect,  imperfection  or 
omission  is  cured  by  the  verdict."  (a)  It  is,  however,  only 
where  such  "  fair  and  reasonable  intendment "  can  be  applied 
that  a  verdict  will  cure  the  objection ;  and  therefore  if  a  nec- 
essary allegation  be  altogether  omitted  in  the  pleading,  or  if 
the  pleading  contain  matter  adverse  to  the  right  of  the  party 
by  whom  it  is  alleged,  and  so  clearly  expressed  that  no  rea- 
sonable construction  can  alter  its  meaning,  a  verdict  will  not 
aid.  (5)  Therefore,  where  the  plaintiff  brought  an  action  of 
trespass  on  the  case,  as  being  entitled  to  the  reversion  of  a 
certain  yard  and  wall,  to  which  the  declaration  stated  a  cer- 
tain injury  to  have  been  committed,  but  omitted  to  allege 
that  the  reversion  was  in  fact  prejudiced,  or  to  show  any 
grievance  which,  in  its  nature,  would  necessarily  prejudice  the 
reversion,  the  court  arrested  the  judgment,  after  a  verdict 
had  been  given  in  favor  of  the  plaintiff,  and  held  the  fault  to 
be  one  which  the  verdict  could  not  cure,  (c)  Lastly,  it  is  to 
be  observed  that,  at  certain  stages  of  the  cause,  all  objections  of 
form  are  cured  by  the  different  statutes  of  jeofails  and  amend- 
ments; (d)  the  cumulative  effect  of  which  is  to  provide  that 

(z)  Jackson  v.  Pesked,  1  M.  &  S.  284. 

(a)  1  Saund.  228  a. 

(6)  Jackson  v.  Pesked,  supra;  Nerot  v.  Wallace,  8  T.  R  25;  Weston  v.  Mason,  8  Burr.  1726. 

(c)  Jackson  v.  Pesked,  supra. 

(d)  Vide  supra,  p.  230. 

1  Quoted,  Penn.Co.  v.  Ellett,  132  III  654, 


§  143.]        RULES    WHICH   TEND   TO    PRODUCTION   OF   ISSUE.  273 

neither  after  verdict  nor  judgment  by  confession,  nil  dicit,  or 
non  sum  informatus,  can  the  judgment  be  arrested  or  reversed 
by  any  objection  of  that  kind.  Thus,  in  an  action  of  trespass, 
where  the  plaintiff  omits  to  allege  in  his  declaration  on  what 
certain  day  the  trespass  was  committed  (which  is  ground  for 
demurrer),  and  the  defendant,  instead  of  demurring,  pleads 
over  to  issue,  and  there  is  a  verdict  against  him,  the  fault  is 
cured  by  the  statutes  of  jeofails ;  (<?)  if  not,  also,  by  the  mere 
effect  of  pleading  over.1 

§  143.  Election  to  demur  or  plead. —  3.  It  will  now  be 
useful  to  examine  the  considerations  by  which,  in  a  view  to 
the  state  of  the  law  as  above  explained,  the  pleader  ought  to 
be  governed  in  making  his  election  to  demur  or  to  plead. 

He  is  first  to  consider  whether  the  declaration  or  other 
pleading  opposed  to  him  is  sufficient,  in  substance  and  in  form, 
to  put  him  to  his  answer.  If  sufficient  in  both,  he  has  no  course 
but  to  plead.  On  the  other  hand,  if  insufficient  in  either, 
he  has  ground  for  demurrer;  but  whether  he  should  demur  or 
not  is  a  question  of  expediency  to  be  determined  upon  the 
following  views.  If  the  pleading  be  insufficient  in  form,  he 
is  to  consider  whether  it  is  worth  while  to  take  the  objection, 
recollecting  the  indulgence  which  the  law  allows  in  the  way 
of  amendment;  (f)  but  also  bearing  in  mind  that  the  objec- 
tion, if  not  taken,  will  be  aided  by  pleading  over,  or,  after 
pleading  over,  by  the  verdict  or  by  the  statutes  of  amend- 
ments and  jeofails.  And  if  he  chooses  to  demur,  he  must  take 
care  to  demur  specially,  lest,  upon  general  demurrer,  he  should 
be  held  excluded  from  the  objection.  On  the  other  hand,  sup- 
posing an  insufficiency  in  substance,  he  is  to  consider  whether 
that  insufficiency  be  in  the  case  itself  or  in  the  manner  of 
statement;  for,  on  the  latter  supposition,  it  might  be  removed 
by  an  amendment ;  and  it  may,  therefore,  not  be  worth  while 
to  demur.  And  whether  it  be  such  as  aa  amendment  would 
remove  or  not,  a  farther  question  will  arise  whether  it  be  not 
expedient  to  pass  by  the  objection  for  the  present  and  plead 

(e)  8  Bl.  Com.  394;  1  Saund.  228  c.,  where  Mr.  Sergeant  Williams  corrects  a  mistake  to 
the  passage  in  Blaekst  one's  Commentaries. 
(/)  Vide  supra,  pp.  230,  272. 

1  Bayard  v.  Malcolm,  1  Johns.  453 ;  s.  c.,  2  Johns.  550.  See,  also,  App., 
Amendments  and  Jeofails. 


274  RULES    WHICH   TEND   TO   PRODUCTION   OF    ISSUE.        [§  144. 

over.  For  a  party,  by  this  means,  often  obtains  the  advan- 
tage of  contesting  with  his  adversary,  in  the  first  instance,  by 
an  issue  in  fact,  and  of  afterwards  urging  the  objection  in  law, 
by  motion  in  arrest  of  judgment  or  writ  of  error.1  This  double 
aim,  however  is  not  always  advisable;  for,  though  none  but 
formal  objections  are  cured  by  the  statutes  of  jeofails  and 
amendments,  there  are  some  defects  of  substance  as  well  as 
form,  which  are  aided  by  pleading  over  or  by  a  verdict ;  (g)  * 
and  therefore,  unless  the  fault  be  clearly  of  a  kind  not  to  be 
so  aided,  a  demurrer  is  the  only  mode  of  objection  that  can 
be  relied  upon.  The  additional  delay  and  expense  of  a  trial 
is  also,  sometimes,  a  material  reason  for  proceeding  in  the 
regular  way  by  demurrer,  and  not  waiting  to  move  in  arrest 
of  judgment  or  to  bring  a  writ  of  error.  And  a  concurrent 
motive  for  adopting  that  course  is,  that  costs  are  not  allowed 
when  the  judgment  is  arrested,  (A)  nor  where  it  is  reversed 
upon  writ  of  error  (i)  (each  party  in  these  cases  paying  his 
own);  but  on  demurrer,  the  party  succeeding  obtains  his  costs. 

§  144.  Of  pleadings. —  Having  now  taken  some  view  of  the 
doctrine  of  demurrers,  the  next  subject  for  consideration  will 
be  that  of  pleadings. 

Under  this  head  it  is  proposed  to  examine,  1,  the  nature 
and  properties  of  traverses;  2,  the  nature  and  properties  of 
pleadings  in  confession  and  avoidance;  3,  the  nature  and  prop- 
erties of.  pleadings  in  general;  without  reference  to  their  qual- 
ity, as  being  by  way  of  traverse,  or  confession  and  avoidance. 

1.  Of  the  nature  and  properties  of  traverses. 

Of  traverses  there  are  various  kinds.  The  most  ordinary 
kind  is  that  which  may  be  called  a  common  traverse.  It  con- 
sists of  a  tender  of  issue;  that  is,  of  a  denial,  accompanied  by 

(g)  As  In  the  example,  supra,  p.  278. 

(h)  1  SeL  Pract.  497;  Cameron  v.  Reynolds,  Cowp.  407. 

(f)  2  Tidd,  110L 

l  Helmuth  v.  Bell,  150  HI.  263 ;  A.,  aider  by  pleading  over,  see  1  Saund. 

T.  &  S.  F.  Ry.  Co.  v.  Feehan,  149  id.  Rep.  228,  note;  Boyd  v.  Blankman, 

202;  1  Chitty,  Pldg.  (14th  Am.  ed.)  29  CaL  19,  87  Am.  Dec.,  note;  Rush- 

673.  See  Lord  Cromwell's  Case,  14  ton  v.  Aspinall,  Doug.  679 ;  1  Sm.  Ld. 

Rep.  14  a.  Cas.  (8th  Am.  ed.)  1445.  Aider  by 

2Whittmore  v.  Ware,  101  Mass,  verdict,  see  further,  Vadnkin  v. 

352;  Slack  v.  Lyon,  9  Pick.  62;  Libby  Saper,  1  Aik.  287, 2  Am.  Ld.  Cas.  142. 

et  al.  v.  Scherman,  146  III  540.  As  to  See  Argumentativeness. 


§  145.]        KTJLES    WHICH    TEND   TO    PRODUCTION   OF   ISSUE.  275 

a  formal  offer  of  the  point  denied,  for  decision ;  (&) l  and  the 
denial  that  it  makes  is  by  way  of  express  contradiction  in 
terms  of  the  allegation  traversed.  Of  this  kind,  examples  have 
already  been  given  in  the  first  chapter.  (1) 

Upon  referring  to  these,  it  will  be  found  that  they  are  all 
expressed  in  the  negative.  That,  however,  is  not  invariably 
the  case  with  a  common  traverse ;  for  if  opposed  to  a  prece- 
dent negative  allegation,  it  will,  of  course,  be  in  the  affirma- 
tive; as  in  the  following  example: 

PLEA 

Of  the  Statute  of  Limitations. 

In  assumpsit. 

(m)  And  the  said  C.  D.,  by ,  his  attorney,  comes 

and  defends  the  wrong  and  injury,  when,  etc.,  and  says  that 
the  said  A.  B.  ought  not  to  have  or  maintain  his  aforesaid  ac- 
tion against  him;  because  he  says  that  he,  the  said  C.  D.,  did 
not,  at  any  time  within  six  years  next  before  the  commence- 
ment of  this  suit,  undertake  or  promise  in  manner  and  form 
as  the  said  A.  B.  hath  above  complained.  And  this  the  said 
C.  D.  is  ready  to  verify.  Wherefore  he  prays  judgment  if 
the  said  A.  B.  ought  to  have  or  maintain  his  aforesaid  action 
against  him,  etc. 

REPLICATION. 

And  the  said  A.  B.  says  that,  by  reason  of  anything  in  the 
said  plea  alleged,  he  ought  not  to  be  barred  from  having  and 
maintaining  his  aforesaid  action  against  the  said  C.  D. ;  be- 
cause he  says  that  the  said  C.  D.  did,  within  six  years  next 
before  the  commencement  of  this  suit,  undertake  and  promise 
in  manner  and  form  as  he,  the  said  A.  B.,  hath  above  com- 
plained. And  this  he  prays  may  be  inquired  of  by  the  country. 

§145.  Of  the  general  issue.—  Besides  this,  the  common 
kind,  there  is  a  class  of  traverses  which,  from  its  great  fre- 
quency and  importance  in  practice,  requires  particular  notice. 
It  is  that  of  the  general  issues.  In  most  of  the  usual  actions 
there  is  an  appropriate  plea,  fixed  by  ancient  usage,  as  the 
proper  method  of  traversing  the  declaration  in  cases  where 
the  defendant  means  to  deny  the  whole  or  the  principal  part 

(fc)  See  the  definition  of  tendering  issue  given  in  the  first  chapter,  supra,  p.  192. 

(I)  Vide  supra,  pp.  188, 189. 

(TO)  Pleadings  are  always  entitled  at  the  commencement;  i.  e.,  have  a  superscription  of 
the  court  and  term,  as  in  the  examples  in  the  first  chapter;  but  to  this  and  all  subsequent 
examples  the  title  is,  for  the  sake  of  brevity,  omitted. 

1  Chapman  v.  Smith,  16  How.  114 


27G  KULES    WHICH    TEND   TO   PRODUCTION   OF    ISSUE.        [§  145. 

of  its  allegations,  (n)  This  form  of  plea  or  traverse  is  called 
the  general  issue  in  that  action ;  and  it  appears  to  be  so  called 
because  the  issue  that  it  tenders,  involving  the  whole  declara- 
tion or  the  principal  part  of  it,  is  of  a  more  general  and  com- 
prehensive kind  than  that  usually  tendered  by  a  common 
traverse.  From  the  examples  of  it  that  will  be  presently 
given,  it  will  be  found  that  not  only  in  extent  or  compre- 
hensiveness, but  in  point  of  form  also,  it  differs  somewhat 
from  a  common  traverse;  for  though,  like  that,  it  tenders 
issue,  yet  in  several  instances  it  does  not  contradict  in  terms 
of  the  allegation  traversed,  but  in  a  more  general  form  of  ex- 
pression. (0) 

In  the  writ  of  right,  and  in  dower,  there  seems  to  be 
(properly  speaking)  no  general  issue,  (p) 

In  formedon  the  general  issue  is  in  the  following  formula, 
and  is  called  the  plea  of  ne  dona  pas,  or  non  dedit: 

And  the  said  C.  D.,  by ,  his  attorney,  comes  and 

defends  his  right,  when,  etc.,  and  says  that  the  said  E.  F.  did 
not  give  the  said  manor,  with  the  appurtenances,  or  any  part 
thereof,  to  the  said  G.  B.  and  the  heirs  of  his  body  issuing,  in 
manner  and  form  as  the  said  A.  B.  hath  in  his  said  count 
above  alleged.  And  of  this  the  said  C.  D.  puts  himself  upon 
the  country,  (q) 

In  quare  irnpedit  the  general  issue  is  called  ne  disturba 
pas,  (r) l  and  it  is  in  the  following  form : 

And  the  said  Bishop,  C.  D.  and  E.  F.,  by ,  their 

attorney,  come  and  defend  the  wrong  and  injury,  when,  etc., 
and  say  that  they  do  not  hinder  the  said  A.  B.  to  present  a 
fit  person  to  the  said  church,  in  manner  and  form  as  the  said 
A.  B.  hath  in  his  said  declaration  above  alleged.  And  of  this 
the  said  Bishop,  C.  D.  and  E.  F.  put  themselves  upon  the 
country,  (s) 

In  deot  on  oond  or  other  specialty,  the  general  issue  is  called 
the  plea  of  non  est  factum,  and  is  as  follows : 

And  the  said  0.  D.,  by ,  his  attorney,  comes  and 

defends  the  wrong  and  injury,  when,  etc.,  and  says  that  the 

(n)  Reg.  Plac.  57;  Doct.  &  Stud.  272. 

(o)  See  the  general  issues  of  non  est  factum,  and  not  guilty,  post,  p.  277. 

(p)  See  Appendix,  note  (46). 

(g)  10  Went.  182. 

(r)  Colt  v.  Bishop  of  Coventry,  Hob.  162. 

(a)  Vide  East.  517;  Winch.  Ent.  703. 

i  See  in  Eead  v.  Brookman,  8  T.  R.  quare  impedit  there  is  no  general 
158,  a  dictum  to  the  effect  that  in  issue. 


§   14:5.]         RULES   WHICH    TEND   TO    PKODUCTION   OF   ISSUE.  277 

said  supposed  writing  obligatory  [or  "indenture"  or  "arti- 
cles of  agreement"  according  to  the  subject  of  the  action]  is  not 
his  deed.  And  of  this  he  puts  himself  upon  the  country,  (t) 

In  debt  on  simple  contract  the  general  issue  is  called  the  plea 
of  nil  debet,1  and  is  thus: 

And  the  said  C.  D.,  by ,  his  attorney,  comes  and 

defends  the  wrong  and  injury,  when,  etc.,  and  says  that  he 
does  not  owe  the  said  sum  of  money  above  demanded,  or  any 
part  thereof,  in  manner  and  form  as  the  said  A.  B.  hath  above 
complained.  And  of  this  the  said  C.  D.  puts  himself  upon 
the  country. 

In  covenant  the  general  issue  is  non  estfactum,  and  its  form 
is  similar  to  that  in  debt  on  specialty. 

In  detinue  the  general  issue  is  called  the  plea  of  non  detinet, 
and  is  as  follows : 

And  the  said  C.  D.,  by ,  his  attorney,  comes  and 

defends  the  wrong  and  injury,  when,  etc.,  and  says  that  he 
does  not  detain  the  said  goods  and  chattels  [0r,  "  deeds  and 
writings"  according  to  the  subject  of  the  action]  in  the  said 
declaration  specified,  or  any  part  thereof,  in  manner  and  form 
as  the  said  A.  B.  hath  above  complained.  And  of  this  the  said 
C.  D.  puts  himself  upon  the  country. 

In  trespass  the  general  issue  is  called  the  plea  of  not  guilty, 
and  is  as  follows : 

And  the  said  C.  D.,  by ,  his  attorney,  comes  and 

defends  the  force  and  injury,  when,  etc.,  and  says  that  he  is 
not  guilty  of  the  said  trespasses  above  laid  to  his  charge,  or 
any  part  thereof,  in  manner  and  form  as  the  said  A.  B.  hath 
above  complained.  And  of  this  the  said  C.  D.  puts  himself 
upon  the  country. 

In  trespass  on  the  case  (in  the  species  of  assumpsit\  the  gen- 
eral issue  is  called  the  plea  of  non  assumpsit,  and  is  as  fol- 
lows: 

And  the  said  C.  D.,  by ,  his  attorney,  comes  and 

defends  the  wrong  and  injurv,  when,  etc.,  and  says  that  he 
did  not  undertake  or  promise  in  manner  and  form  as  the  said 
A.  B.  hath  above  complained.  And  of  this  the  said  C.  D.  puts 
himself  upon  the  country. 2 

(t)  Though  non  estfactum  is,  in  most  cases,  the  general  Issue  to  debt  on  specialty,  yet, 
when  the  deed  is  only  inducement  to  the  action,  that  is,  introductory  to  some  other  matter 
on  which  it  is  mainly  founded,  the  general  issue  is  nil  debet,  as  in  the  next  form. 

1  See  Clason  v.  Parish,  93  Va.  24.  2  See  Index,  General  Issue. 


278  ETJLES   "WHICH   TEND   TO   PRODUCTION   OF   ISSUE.        [§  145. 

In  trespass  on  the  case,  in  general,  the  general  issue  is  not 
guilty,  and  is  thus: 

And  the  said  C.  D.,  by ,  his  attorney,  comes  and 

defends  the  wrong  and  injury,  when,  etc.,  and  says  that  he  is 
not  guilty  of  the  premises  above  laid  to  his  charge  in  manner 
and  form  as  the  said  A.  B.  hath  above  complained.  And  of 
this  the  said  C.  D.  puts  himself  upon  the  country. 

In  replevin  the  general  issue  is  called  the  plea  of  non  cepity 
and  is  as  follows: 

And  the  said  0.  D.,  by ,  his  attorney,  comes  and 

defends  the  wrong  and  injury,  when,  etc.,  and  says  that  he  did 
not  take  the  said  cattle  [or  " goods  and  chattels"  according  to 
the  subject  of  the  action]  in  the  said  declaration  mentioned,  or 
any  of  them,  in  manner  and  form  as  the  said  A.  B.  hath  above 
complained.  And  of  this  the  said  C.  D.  puts  himself  upon  the 
country. 

[The  effect  of  the  general  issue  in  dispensing  with  special  plead- 
ing is  very  important.]  By  tendering  issue  on  the  declaration, 
and  thus  closing  the  process  of  the  pleading,  at  so  early  a  stage, 
it  throws  out  of  use,  wherever  it  occurs,  a  great  many  rules  of 
pleading  applying  exclusively  to  the  remoter  allegations.  For 
it  is  evident  that,  when  the  issue  is  thus  tendered  in  the  plea, 
the  whole  doctrine  relating  to  pleadings  in  confession  and  avoid- 
ance, replications,  rejoinders,  etc.,  is  superseded.  At  the  same 
time,  the  general  issue  is  of  very  frequent  occurrence  in  plead- 
ing; and  it  has  therefore,  on  the  whole,  the  effect  of  narrowing 
very  considerably  the  application  of  the  greater  and  more 
subtle  part  of  the  science. 

The  important  character  of  this  plea  makes  it  material  to 
explain  distinctly  in  what  cases  it  may  and  ought  to  be  used ; 
and  this  is  the  more  necessary  because  an  allowed  relaxation 
in  the  modern  practice  has,  in  some  actions,  given  it  an  appli- 
cation more  extensive  than  belongs  to  it  in  principle.1  To 

1  The  Maryland  code  provision  that  proved  under  the  general  issue.  Such 

the  general  issue  in  assumpsit  "never  a  plea  is  in  confession  and  avoid- 

promise  "  is  construed  to  be  equiva-  ance,  and  good  on  demurrer.  Id.  See 

lent  to  the  non  assumpsit  before  the  Color. 

English  rules  of  1834.  Keedyv.  Long,       Inasswmps#anddebtonst?np7econ- 

71  Md.  384.    There  is  a  distinction  tract,  anything  which  tends  to  show 

between  a  plea  amounting  to  the  that  the  plaintiff  has  no  cause  of  ac- 

general  issue  and  one  admitting  some  tion  at  the  time  he  brought  the  suit 

fact  which  would  give  color  to  the  may  be  given  in  evidence  under  the 

plaintiff's  action,  and   alleging   an  general  issua  When  the  contract  was 

independent  fact  which    could    be  implied  there  was  no  violence  done  to 


§  146.]        EULE8   WHICH   TEND   TO    PRODUCTION   OF    ISSUE. 


279 


obtain  a  clear  view  of  this  subject  we  must  examine  the  lan- 
guage of  the  different  general  issues  in  reference  to  the  dec- 
larations which  they  respectively  traverse. 

First,  with  respect  to  the  general  issue  in  formedon,  we 
find  that  this  plea  simply  denies  the  gift  in  tail  to  have  been 
made  in  manner  and  form  as  alleged.  It  will  therefore  bo 
the  proper  plea  if  the  tenant  means  to  dispute  the  fact  of  the 
gift,  but  will  apply  to  no  other  Case. 

In  quare  im/pedit  the  general  issue  simply  denies  that  the 
defendant  obstructed  the  presentation,  and  is  adapted  to  no 
other  ground  of  defense. 

§  146.  In  debt  on  specialty  and  in  covenant,1  the  general 
issue,  non  estfactum,  denies  that  the  deed  mentioned  in  the 


logic,  nor  was  the  plea  lacking  in 
that  quality  which  should  pervade 
all  pleading,  viz. :  every  pleading 
should  notify  the  opposite  party  of 
the  facts  he  was  to  meet;  but  after 
the  extension  of  the  effect  of  non 
assumpsit  and  nil  debet  to  express 
contracts  the  plea  lost  this  quality. 
This  departure  from  principle  has 
been  met  by  protests  from  time  to 
time,  and  Blackstone  remarks  of  it, 
that  although  it  would  seem  as  if 
much  confusion  would  follow,  yet 
experience  has  shown  it  to  be  other- 
wise, especially  with  the  aid  of  a 
new  trial  3  Cooley's  Black.  *303. 

The  right  to  require  a  bill  of  par- 
ticulars is  always  a  certain  remedy 
to  prevent  surprise.  That  the  per- 
verted use  of  the  general  issue  is  a 
departure  from  principle  is  plain. 
1  Chitty  PI.  *472;  Gardner  v.  Buck- 
bee,  3  Cow.  120;  Ld.  Raym.  217; 
Waidner  v.  Pauley,  141  111.  442. 

Writers  upon  code  pleading  have 
had  quite  as  much  to  contend  with 
in  discussing  the  application  of  the 
general  denial  under  our  codes  as 
did  Stephen  in  reference  to  the 
general  issue.  Pomeroy,  Code  Rem., 
§  643.  The  practice  ought  to  con- 
form to  the  facts,  either  express  or 
implied,  and  might  easily  be  made  to 


do  so  if  the  principles  were  first  ac- 
quired. These  principles  are  well 
elucidated  in  the  opinion  of  Justice 
Selden  in  McKyring  v.  Bull,  16  N.  Y. 
297.  The  forms  of  general  denial 
under  the  codes,  which  are  analogous 
to  the  general  issue  at  common  law, 
have  been  changed,  and  also  the  ef- 
fect of  them,  with  the  idea  of  making 
them  conform  to  the  principles  of  the 
ancient  common  law,  by  confining 
their  operation  to  facts.  Maxwell, 
Code  PL  17.  An  exceedingly  loose 
and  uncertain  practice  has  grown  up 
under  these  general  denials,  in  no 
way  preferable  to  the  departures 
from  the  common-law  idea  just 
mentioned.  Youngs  v.  Kent,  46  N.  Y. 
672.  If  a  pleading  is  indefinite,  the 
opposite  party  must  move  to  make 
it  more  definite  and  certain.  The 
substantial  difference  seems  merely 
to  be,  that  while  under  the  common- 
law  general  issue  the  plaintiff  could 
never  be  sure  as  to  what  the  line 
of  defense  would  be,  he  could  know 
precisely  by  requiring  a  bill  of  par- 
ticulars. Under  the  code,  if  the  de- 
nial was  not  specific,  the  other  party 
might  move  to  make  it  so.  See 
Burley  v.  German  Am.  Bank,  111  U. 
S.  221. 
1  There  is  no  general  issue,  strictly 


280  KULES   WHICH    TEND    TO   PRODUCTION   OF   ISSUE.        [§  147. 

declaration  is  the  deed  of  the  defendant.  Under  this,  the  de- 
fendant at  the  trial  may  contend  either  that  he  never  exe- 
cuted such  deed  as  alleged,  or  that  its  execution  was  absolutely 
void  in  law ;  as,  for  example,  on  the  ground  that  the  alleged 
obligor  or  covenantor  was  a  married  woman,  or  a  lunatic;  (u) l 
but  if  the  defendant's  case  consist  of  anything  but  a  denial  of 
the  execution  of  the  deed,  or  some  fact  impeaching  the  valid- 
ity of  its  execution,  the  plea  will  be  improper,  (a?) 

§  147.  Debt  on  simple  contracts. —  If  the  general  issue  in 
debt  on  simple  contract  be  now  examined,  its  effect  and  appli- 
cation will  be  found  to  be  much  more  extensive.  The  dec- 
laration alleges  that  the  defendant  was  indebted  to  the  plaint- 
iff on  some  consideration,  e.  <?.,  for  goods  sold  and  delivered,  (y) 
The  general  issue  alleges  "  that  he  does  not  owe  the  sum  of 
money,"  etc.  "Were  the  allegation  merely  that  "  the  goods 
were  not  sold  and  delivered,"  it  would  of  course  be  applicable 
to  no  case  but  that  where  the  defendant  means  to  deny  the 
sale  and  delivery;  but  as  the  allegation  is  that  he  does  not 
owe,  it  is  evident  that  the  plea  is  adapted  to  any  kind  of  de- 

(w)  Obm.  Dig.,  Pleader  (2  W.  18). 

(a;)  Matters  which  make  the  deed  voidable  only,  and  not  absolutely  void,— such  as  du~ 
ress,—  must  be  specially  pleaded,  and  cannot  be  given  in  evidence  undernon  estfactum. 
Com.  Dig.,  Pleader  (2  W.  19);  2  Inst.  482. 

(y)  Vide  supra,  p.  158. 

speaking,  in  covenant,  but  non  est  Duryee,  7  Cranch,  481.    Of.  Wright 

factum  may  be  used.    Longley  v.  v.  Boynton,  37  N.  H.  9,  72  Am.  Dec. 

Norvall,  1  Scam.  389.    See  Bender  v.  819.    The  plea  of  nul  tiel  record  puts 

Fromberg,  4  Dall.  436.  in  issue  simply  the  existence  of  such 

1  Anthony  v.  Wilson,  14  Pick.  303 ;  a  record  as  may  have  been  declared 

Longley  v.  Norvall,  1   Scam.  384 ;  1  upon.    Stevens  v.  Fisher,  30  Vt  200 ; 

Chitt  483 ;  Mix  v.  People,  92  111.  549 ;  Gay  v.  Lloyd,  1  G.  Greene,  787, 46  Am. 

Bullisv.  Giddens,  8  Johns.  83;  Pritch-  Dec.  498;  Sammis  v.  Wightman,  31 

ett  v.  People,  1  Gilm.  525.    Nul  tiel  Fla.  10.    Where  there  was  no  legal 

record  is  the  proper  plea  in  debt  upon  capacity  to  make  the  bond,  the  plea 

a  justice's  record.    Adair's  Adm'r  v.  may  be  non  est  factum.    Anthony  v. 

Rogers,  Wright  (O.),  428 ;  Ellsworth  Wilson,  14  Pick.  303.    Nil  debet  is  not 

v.  Learned,  21  Vt  535.   But  nil  debet  a  good  plea  to  an  action  of  debt  upon 

is  good  against  a  justice's  judgment  a  specialty  where   the  deed  is  the 

of  another  state.    Cole  v.  Driskell,  1  foundation  of  the  action ;  otherwise 

Blackf.   (Ind.)  16,    and    nota      Not  where  the  deed  is  only  inducement, 

against  an  action  upon  a  judgment  Matthews  v.  Redwine,  23  Miss.  233; 

in  a  court  of  record  of  a  sister  state.  Hannah  v.  McKenzie,  5  B.  Mon.  314, 

Hall  v.  Williams,  6  Pick.  232,  17  Am.  43  Am.  Dec.  122;  Sneed  v.  Wister,  8 

Dec.  356;   Knickerbocker  Life  Ins.  Wheat  690 ;  Davis  v.  Burton,  3  Scam. 

Co.  v.  Barker,  55  III  241 ;  Mills  v.  41,  36  Am.  Dec.  511. 


§§   148,  149.]      RULES  WHICH   TEND  TO  PRODUCTION    OF    ISSUE.       281 

fense  that  tends  to  deny  an  existing  debt;  and  therefore  not 
only  to  a  defense  consisting  in  a  denial  of  the  sale  and  delivery, 
but  to  the  defenses  of  release,  satisfaction,  arbitrament  and  a 
multitude  of  others,  to  which  a  general  issue  of  a  narrower 
kind, —  for  example,  that  of  non  est  factum, —  would,  in  its 
appropriate  actions,  be  inapplicable.  In  short,  there  is  hardly 
any  matter  of  defense  to  an  action  of  debt  to  which  the  plea 
of  nil  debet  may  not  be  applied,  because  almost  all  defenses 
resolve  themselves  into  a  denial  of  the  debt.1 

§  148.  In  detinue  the  declaration  states  that  the  defendant 
detains  certain  goods  of  the  plaintiff ;  (s)  the  general  issue  al- 
leges that  he  "  does  not  detain  the  said  goods  in  the  said 
declaration  specified,"  etc.  This  will  apply  either  to  a  case 
where  the  defendant  means  to  deny  that  he  detains  the  goods 
mentioned,  or  to  a  case  where  he  means  to  deny  that  the 
goods  so  detained  are  the  property  of  the  plaintiff;  for,  if 
they  are  not  the  plaintiff's  property,  then  it  is  true  that  the 
defendant  does  not  detain  the  goods  specified  in  the  declara- 
tion, the  only  goods  there  specified  being  described  as  the 
goods  of  the  plaintiff. 

§  149.  In  trespass  the  general  issue,  not  guilty,  evidently 
amounts  to  a  denial  of  the  trespasses  alleged,  and  no  more. 
Therefore  if  in  trespass  for  assault  and  battery  the  case  be 
that  the  defendant  has  not  assaulted  or  beat  the  plaintiff,  it 
will  be  proper  that  he  should  plead  the  general  issue ;  but  if 
his  case  be  of  any  other  description,  the  plea  will  be  inappli- 
cable. So,  in  trespass  quare  clausum  fregit,  or  for  taking  the 
plaintiff's  goods,  if  the  defendant  did  not  in  fact  break  and 
enter  the  close  in  question,  or  take  the  goods,  the  general 
issue,  "  not  guilty,"  will  be  proper.  It  will  also  be  applicable 
if  he  did  break  and  enter  the  close,  but  it  was  not  in  the  posses- 
sion of 'the  plaintiff ',  or,  not  lawfully  in  his  possession,  as  against 

00  Vide  supra,  p.  160. 

1 1  Saund.  38;  King  v.  Ramsey,  13  ton,  8  J.  J.  Marsh.  600,  20  Am.  Dec. 

Ill  619 ;  Jansen  v.  Ostrander,  1  Cow.  179 ;  Matthews  v.  Redwine,  23  Miss. 

670.     In  some  actions  of  debt  not  233 ;  Sneed  v.  Wister,  8  Wheat  690. 

guilty  is  allowable.   Stilson  v.  Tobey,  This  is  a  good  plea  to  a  declaration 

2  Mass.  521.    When  the  deed  is  not  on  a  foreign  judgment  when  there 

the  ground,  but    only  the  induce-  was    no    jurisdiction.     Judkins    v. 

ment,  of  the  declaration,  nil  debet  Union  M.  Ins.  Co.,  37  N.  H.  470.    See 

may  be  pleaded.    Williams  v.  Pres-  McRae  v.  Mattoon,  13  Pick.  53, 


282  EULE8   WHICH   TEND   TO   PRODUCTION    OF   ISSUE.        [§  150. 

the  letter  title  of  the  defendant,  (a)  So  it  will  be  applicable  if 
he  did  take  the  goods,  but  they  did  not  lelong  to  the  plaintiff . 
For,  as  the  declaration  alleges  the  trespass  to  have  been  com- 
mitted on  the  close  or  goods  of  the  plaintiff,  the  plea  of  not 
guilty  involves  a  denial  that  the  defendant  broke  and  entered 
the  close  or  goods  of  the  plaintiff ;  and  is  therefore  a  fit  plea, 
if  the  defendant  means  to  contend  that  the  plaintiff  had  no 
possession  of  the  close,  or  property  in  the  goods,  sufficient  to 
entitle  him  to  call  them  his  own.  But  if  the  defense  be  of 
any  other  kind,  the  general  issue  will  not  apply.1 

So  far  all  is  consistent  with  the  form  and  principle  of  these 
several  pleas ;  but  with  respect  to  the  two  general  issues  that 
next  follow,  the  case  is  somewhat  different.  • 

§  150.  Assumpsit. —  First,  with  respect  to  that  in  assump- 
sit.  The  declaration  in  this  action  (5)  states  that  the  defend- 
ant, upon  a  certain  consideration  therein  set  forth,  made  a 
certain  promise  to  the  plaintiff.  The  general  issue  in  this  ac- 
tion states  that  the  defendant  "did  not  promise  and  undertake 
in  manner  and  form,"  etc.  This,  at  first  sight,  would  appear 
to  put  in  issue  merely  the  fact  of  his  having  made  a  promise 
such  as  alleged.  A  much  wider  effect,  however,  belongs  in 
practice  to  this  plea ;  and  was  originally  allowed  (as  it  would 
appear)  in  reference  to  the  following  distinction.  It  has  been 
already  stated,  in  a  former  part  of  the  work,  (0)  that  the  law 
will  always  imply  a  promise  in  consideration  of  an  existing 

(a)  Dodd  T.  Klffln,  7  T.  R.  854. 
(6)  Vide  supra,  pp.  133,  163. 
(c)  Vide  supra,  p.  133. 

1  Not  guilty  is  a  denial  of  the  right  12  111.  80 ;  Harris  v.  Miner,  28  id.  135 ; 

of  the  plaintiff  and  of  the  act  of  tres-  Olsen  v.  Upsahl,  69  id.  273;  Van 

pass.  Floyd  v.  Ricks,  14  Ark.  286,  Namee  v.  Bradley,  id.  299 ;  Comstock 

58  Am.  Dec.  874 ;  Hunter  v.  Hatton,  v.  Odorman,  18  111.  App.  326 ;  Coles  v. 

4  Gill,  115,  45  Am.  Dec.  117.  See,  Carter,  6  Cow.  691 ;  Ruggles  v.  Le- 

also,  Milman  v.  Dolwell,  2  Camp.  878.  sure,  24  Pick  187 ;  Finch  v.  Alston,  2 

Compare  Harris  v.  Miner,  28  111.  185,  Stewart  &  Port  88,  23  Am.  Dec.  299. 

which  contains  a  dictum  to  the  con-  When  the  defendant  pleads  property 

trary,  probably  induced  by  the  re-  in  a  third  person,  and  justifies  the 

marks  of  Mr.  Addison  as  to  the  Eng-  taking  under  process  against  him, 

lish  decisions  under  the  rules  of  Hil.  the  plaintiff  must  reply  traversing 

Term,  16  Viet  1.  the  ownership.  Simmons  v.  Jenkins, 

A  justification  or  discharge  must  76  111.  480 ;  Chandler  v.  Lincoln,  52 

•be  specially  pleaded.  Senecal  v.  La-  id.  75 ;  Cons  tan  tin  v.  Foster,  57  id.  36. 
badie,  42  Mich.  126 ;  Hahn  v.  Ritter, 


§  150.]        KULES   WHICH   TEND   TO   PRODUCTION   OF   ISSUE. 

debt  or  liability ;  and  that  the  action  of  assumpsit  may  be 
consequently  founded  on  a  promise  either  express  or  implied. 
"When  the  promise  relied  upon  was  of  the  latter  kind,  and  the 
defendant  pleaded  the  general  issue,  the  plaintiff's  mode  of 
maintaining  the  affirmative  of  this  issue  on  the  trial  was,  of 
course,  by  proving  that  debt  or  liability  on  which  the  implied 
promise  would  arise ;  and  in  such  case  it  was  evidently  rea- 
sonable that  the  defendant  also  should,  under  his  plea  deny- 
ing the  promise,  be  at  liberty  to  show  any  circumstance  by 
which  the  debt  or  liability  was  disproved;  such,  for  example, 
as  performance  or  a  release.  Accordingly,  in  actions  on  im- 
plied assumpsits,  this  effect  was,  on  the  principle  here  men- 
tioned, allowed  to  the  general  issue,  (d)  But  it  was  at  first 
allowed  in  the  case  of  implied  assumpsits  only; l  and  where  an 
express  promise  was  proved,  the  defendant,  in  conformity  with 
the  language  and  strict  principle  of  his  plea,  was  permitted, 
under  the  general  issue,  only  to  contest  the  fact  of  the  promise ; 
or,  at  most,  to  show  that  on  the  ground  of  some  illegality  it 
was  a  promise  void  in  law.  This  practice,  however,  was  by 
relaxation  gradually  applied  to  those  on  express  promises  also ; 
and  at  length,  in  all  actions  of  assumpsit,  without  distinction, 
the  defendant  was,  under  the  general  issue,  permitted  not 
only  to  contend  that  no  promise  was  made,  or  to  show  facts 
impeaching  the  validity  of  the  promise,  but  to  prove  any 
matter  of  defense  whatever  which  tends  to  deny  his  debt  or 
liability,  subject,  however,  to  a  few  exceptions  to  be  presently 
noticed. 

This  is  a  great  deviation  from  principle ;  for  it  is  to  be  ob- 
served that  many  of  these  matters  of  defense  are  such,  as  in 
the  case  of  express  promise,  as  ought  regularly  to  be  pleaded 
in  confession  and  avoidance.  Thus,  if  the  defendant  be  charged 
with  an  express  promise,  and  his  case  be  that  after  making 
such  promise  it  was  released  or  performed,  this  plainly  con- 
fesses and  avoids  the  declaration.  To  allow  the  defendant, 
therefore,  to  give  this  in  evidence  under  the  general  issue, 
which  is  a  plea  by  way  of  traverse,  is  to  lose  sight  of  the  dis- 
tinction between  the  two  kinds  of  pleading.  And  even  where 

(d)  Fritz  v.  Freestone,  1  Mod.  810;  Vin.  Ab.,  Evidence,  Z.  a;  1  Chitty,  471. 

i  See  Gardner  v.  Buckher,  3  Cow.  120 ;  McKyring  T.  Bell,  16  N.  Y.  2^ 


"Si  RULES    WHICH   TEND   TO   PRODUCTION   OF    ISSUE.        [§  151. 

the  matters  of  defense  thus  admitted  in  evidence  are  not 
such  as  would  have  been  pleadable  by  way  of  confession  and 
avoidance,  but  are  in  the  nature  of  a  traverse  of  the  declara- 
tion, yet  they  are  almost  always  inconsistent  with  the  form 
and  language  of  the  general  issue  in  this  action,  which  (as  has 
been  seen)  consists  of  a  denial  of  the  promise  only  and  pur- 
ports to  traverse  no  other  part  of  the  declaration.1  Thus,  in 
an  action  which  has  become,  of  all  others,  the  most  frequent 
and  general  in  its  application,  the  science  of  pleading  has  been, 
in  a  great  measure,  superseded  by  an  innovation  of  practice, 
which  enables  the  parties  to  come  to  issue  upon  the  plea  (the 
second  step  in  the  series  of  allegations)  in  a  great  variety  of 
cases,  which  would  formerly  have  led  to  much  remoter  or 
more  specific  issues.  This  important  inroad  on  the  ancient 
dominion  of  pleading  has  been  effected  for  more  than  a  cent- 
ury past,  (e)  and  was  probably  first  encouraged  by  the  judges 
in  consequence  of  a  prevalent  opinion  that  the  rules  of  this 
science  were  somewhat  more  strict  and  subtle  than  is  consist- 
ent with  the  objects  of  justice ;  and  that,  as  the  general  issue 
tended  to  abbreviate  its  process  and  proportionably  to  emanci- 
pate the  suitors  from  its  restrictions,  it  was  desirable  to  ex- 
tend, as  much  as  possible,  the  use  and  application  of  that  plea. 
§  151.  Trespass  on  the  case. —  Next  in  order  is  the  general 
issue,  which  belongs  to  the  action  of  trespass  on  the  case  in 
general.  The  declaration  in  this  action  sets  forth  specifically 
the  circumstances  which  form  the  subject  of  complaint,  (f) 
The  general  issue,  not  guilty,  is  a  mere  traverse  or  denial  of 
the  facts  so  alleged;  and  therefore,  on  principle,  should  be 
applied  only  to  cases  in  which  the  defense  rests  on  such  denial. 
But  here  a  relaxation  has  taken  place,  similar  to  that  which 
prevails  in  assumpsit;  for,  under  the  plea  now  in  question,  a 
defendant  is  permitted  not  only  to  contest  the  truth  of  the 
declaration,  but  (with  certain  exceptions  to  be  presently  no- 
ticed) to  prove  any  matter  of  defense  that  tends  to  show  that 
the  plaintiff  has  no  right  of  action,  though  such  matters  be  in 
confession  and  avoidance  of  the  declaration;  as,  for  example, 

(e)  Vide  12  Mod.  877,  where  Holt,  C.  J.,  says:  "  It  is  indulgence  to  give  accord  with  tat' 
i»f action  in  evidence  upon  non  assumpsit  pleaded;  but  that  has  crept  in,  and  now  is  set- 
tled." 

(/)  Supra,  pp.  169  et  seq. 

*•  See  ante,  p.  277,  note. 


§§  152,153.]      KULES  WHICH   TEND  TO   PRODUCTION   OF   ISSUE.       285 

a  release  given  or  satisfaction  made.  This  latitude  was  no 
doubt  originally  allowed  in  the  same  view  that  prompted  the 
encouragement  of  the  general  issue  in  assumpsit.  It  is  not, 
however,  easy  to  conceive  by  what  artifice  of  reasoning  the 
relaxation  was  in  this  case  held  to  be  reconcilable  with  the 
principles  of  pleadings,  to  which  it  stands  in  apparent  variance ; 
and  perhaps  the  truth  is  that  the  practice  in  question  was  first 
applied  to  the  general  issue  in  trespass  on  the  case  in  general, 
without  regard  to  any  principle  beyond  that  of  a  forced  anal- 
ogy to  the  similar  practice  in  trespass  on  the  case  in  as- 
sumpsit.  (g)1 

§  152.  Replevin. —  Lastly,  the  general  issue,  non  cepit  in  re- 
plevin, applies  to  the  case  where  the  defendant  has  not,  in 
fact,  taken  the  cattle  or  goods,  or  where  he  did  not  take  them, 
or  have  them,  in  the  place  mentioned  in  the  declaration.  (A) 
For  it  will  be  observed  that  the  declaration  alleges  that  the 
defendant  "  took  certain  cattle  or  goods  of  the  plaintiff  in  a 
certain  place  called,"  etc. ;  (i)  and  the  general  issue  states 
that  he  did  not  take  the  said  cattle  or  goods  "  in  manner  and 
form  as  alleged;"  which  involves  a  denial  both  of  tke  taking 
and  of  the  place  in  which  the  taking  was  alleged  to  have  been  — 
the  place  being  a  material  point  in  this  action.  (&)2 

§  153.  Observations  on  the  general  issue. —  Such  is,  in  gen- 
eral, the  scope  and  effect  in  each  of  the  most  usual  actions  of 
the  general  issue.  But  there  are  still  some  observations  nec- 

(g)  See,  however,  Lord  Mansfield's  explanation  of  the  reason  for  allowing  this  practice 
in  trespass  on  the  case.  Bird  v.  Randell,  3  Burr.  1353;  1  Chitty,  486. 

(fc)  1  Chitty,  490;  2  Chitty,  608. 

(f)  Supra,  p.  168. 

(fc)  It  may  occur  that  this  plea  ought,  upon  principle  already  explained  with  respect  to 
detinue  and  trespass  (supra,  pp.  281 ,  282)  to  be  also  applicable  to  the  case  where  the  defend- 
ant denies  the  plaintiff* 8  property  in  the  goods;  but  the  law  is  not  so.  1  Chitty,  159; 
1  Vent.  249. 

iThis  is  the  rule  in  some  code  Lincoln,  52  111.  74;  MacKinley  v.  Mo- 
states.  Smith  v.  Chamberlain,  38  Gregor,  3  Whart.  369,  31  Am.  Dec. 
S.  C.  529.  522.  When  the  defendant  pleads 

2  Neither  the  plea  of  non  cepit  nor  property  in  a  third  person  or  in  him- 
non  detinet  denies  the  ownership  of  self,  and  traverses  plaintiff's  prop- 
the  plaintiff,  and  a  verdict  for  the  erty,  the  allegation  of  the  property 
defendant  on  such  pleas  will  not  en-  in  the  third  person  is  inducement 
title  a  return  of  the  property.    The  Chandler  v.  Lincoln,  52  III  74;  Con- 
right  of  property  can  only  be  put  in  stantine  v.  Foster,  57  id.  36. 
issue  by  a  special  plea.    Chandler  v. 
19 


286  RULES    WHICH    TEND  TO    PRODUCTION   OF   ISSUE.        [§  153. 

essary  to  complete  the  reader's  view  of  that  subject.  It  has 
been  seen  that  in  trespass  on  the  case  the  defendant  is  allowed 
under  the  general  issue  to  give  in  evidence  matters  which  do 
not  fall  within  the  strict  principle  of  that  plea;  and  among 
these,  matters  confession  and  avoidance.  But  it  is  to  be  under- 
stood with  respect  to  matters  of  this  latter  description,  that, 
though  allowed,  he  is  in  no  case  obliged  to  take  that  course, 
but  may  still  plead  by  way  of  confession  and  avoidance  all 
such  matters  as  properly  fall  within  the  principle  of  such 
pleadings;  that  is,  all  matters  which  confess  what  is  adversely 
alleged,  but  repel  or  obviate  its  legal  effect.1  Thus,  the  de- 
fendant may  in  assumpsit  and  other  actions  of  trespass  on  the 
case  plead  a  release,  though  it  is  also  competent  to  him  to  rely 
upon  it,  in  evidence  under  the  general  issue.  As  this  course 
is  allowable,  so  there  are  reasons  of  convenience  which  some- 
times dictate  its  adoption;  but  the  general  issue,  where  ca- 
pable of  being  applied,  is  much  the  more  usual  form  of  plea, 
and  that  which,  from  its  generality,  is  commonly  the  most 
advantageous  to  the  defendant.  It  is  also  to  be  observed  that 
both  in  assumpsit  and  trespass  on  the  case  in  general,  there 
are  some  matters  in  confession  and  avoidance  to  which  the 
relaxation  of  practice  above  explained  does  not  extend,  and 
which  cannot  be  shown  in  evidence  under  the  general  issue, 
but  must  be  pleaded  in  the  regular  course.  These  excepted 
cases,  however,  are  few,  and  each  rests  on  grounds  peculiar 
to  itself.  Their  enumeration  will  be  found  in  the  books  of 
practice.  (Z) 2 

(D  See  1  Chitty,  473,  487-9. 

1  Cf.  McCord  v.  Mech.  Nat  Bank,  be  pleaded  specially.    Olsen  v.  Up- 
84  111.  49 ;  Governor  v.  Lagow,  43  id.  salil,  69  111.  273 ;  id.  299 ;  Hahn  v.  Rit- 
135.    Special  pleas  which  amount  to  ter,  12  id.  81 ;  1  Addison  on  Torts, 
the  general  issue  may  be  objected  to  §  531.    The  defendant  may  resort  to 
by  special  demurrer  or  motion   to  the   general    issue    with    notice   of 
strike    from    the    files.    McCord  v.  special  matters  of  defense,  but  the 
Mech.  Nat  Bank,  84  111.  49 :    Gov-  practice  is  not  clear,  and  great  care 
ernor  v.  Logan,  43  id.  135 ;  III.  Cent.  R.  is  required  in  framing  the  notice. 
Co.  v.  Johnson,  34  id.  389 ;  Wadhams  See  Kane  v.  Sanger,  14  Johns.  89 ; 
v.  Swan,   109  id.   54 ;    Cushman  v.  Vaughn  v.  Ha  vans,  8  id.  109 ;   cases 
Hayes,  46  id.  145;  Cook  v.  Scott,  1  cited  1  Chitty,  PL  *473;  Burg  win  v. 
Gilm.  333.  Babcock,  11  111.  28.    For  form  of  no- 

2  McCord  v.  Mech.  Nat,  Bank,  84  tice,  see  Walters  v.  Smith,  23  I1L 
111.  49.    Matters  of  justification  must  342. 


§§  151,155.]      RULES  WHICH  TEND  TO   PRODUCTION   OF   ISSUE.      287 

§  154,  Special  pleas. —  On  the  subject  of  general  issues  it 
remains  only  to  remark  that  other  pleas  are  ordinarily  dis- 
tinguished from  them  by  the  appellation  of  special  pleas'  and 
when  resort  is  had  to  the  latter  kind,  the  party  is  said  to 
plead  specially,  in  opposition  to  pleading  the  general  issue,  (m) 
So  the  issues  produced  upon  special  pleas  as  being  usually 
more  specific  and  particular  than  those  of  not  guilty,  nil  debet, 
etc.,  are  sometimes  described  in  the  books  as  special  issues,  by 
way  of  distinction  from  the  others,  which  were  called  general 
issues;  (n)  the  latter  term  having  been  afterwards  applied,  not 
only  to  the  issues  themselves,  but  to  the  pleas  which  tendered 
and  produced  them.1 

§  155.  Of  the  traverse  de  injuria.—  There  is  another  species 
of  traverse,  which  varies  from  the  common  form,  which, 
though  confined  to  particular  actions  and  to  a  particular  stage 
of  the  pleadings,  is  of  frequent  occurrence.  It  is  the  traverse 
de  injuria  sua  propria,  dbsque  tali  causa,  or  (as  it  is  more 
•compendiously  called)  the  traverse  de  injuria.  It  always 
tenders  issue;  but,  on  the  other  hand,  differs,  like  many  of  the 
general  issues,  from  the  common  form  of  a  traverse,  by  deny- 
ing in  general  and  summary  terms,  and  not  in  the  words  of  the 
allegation  traversed.  The  following  is  an  example: 

PLEA 

Of  Son  Assault  Demesne  [Plaintiff's  own  assault].* 
In  trespass  for  assault  and  battery. 

And  for  a  farther  plea  (0}  in  this  behalf,  as  to  the  said  as- 
saulting, beating,  wounding  and  ill-treating  in  the  said  decla- 
ration mentioned,  the  said  0.  D.,  by  leave  of  the  court  here, 
for  this  purpose,  first  had  and  obtained,  according  to  the  form 
of  the  statute  in  such  case  made  and  provided,  says  that  the 
said  A.  B.  ought  not  to  have  or  maintain  his  aforesaid  action 
thereof  against  him,  because  he  says  that  the  said  A.  B.,  just 
before  the  said  time  when,  etc.,  to  wit,  on  the  day  and  year 

aforesaid,  at aforesaid,  in  the  county  aforesaid,  with  force 

and  arms,  made  an  assault  upon  him,  the  said  C.  D.,  and 
would  then  and  there  have  beaten  and  ill-treated  him,  the 
said  C.  D.,if  he  had  not  immediately  defended  himself  against 

(m)  These  terms,  it  may  be  remarked,  have  given  rise  to  the  popular  denomination  of 
the  whole  science  to  which  this  work  relates,  which,  though  properly  described  as  that  of 
pleading,  is  generally  known  by  the  name  of  special  pleading. 

(n)  Co.  Litt.  126  a;  Heath's  Maxims,  53;  Com.  Dig.,  Pleader  (R.  2). 

(o)  In  this  case  the  defendant  is  supposed  to  plead  more  pleas  than  one.  The  doctrine 
cf  pleading  several  pleas  will  be  explained  in  a  subsequent  section. 

i  3  Cooley's  Blk.  (4th  ed.),  p.  305.  .        2  3  Cooley's  Blk. (4th  ed.),  pp.  128,308. 


288  RULES   WHICH   TEND   TO   PRODUCTION   OF    ISSUE.        [§  155. 

the  said  A.  B. :  wherefore  the  said  C.  D.  did  then  and  there 
defend  himself  against  the  said  A.  B.,  as  he  lawfully  might, 
for  the  cause  aforesaid ;  and  in  so  doing  did  necessarily  and 
unavoidably  a  little  beat,  wound  and  ill-treat  the  said  A.  B., 
doing  no  unnecessary  damage  to  the  said  A.  B.  on  the  occa- 
sion aforesaid.  And  so  the  said  C.  D.  saith  that  if  any  hurt 
or  damage  then  and  there  happened  to  the  said  A.  B.,  the 
same  was  occasioned  by  the  said  assault  so  made  by  the  said 
A.  B.  on  him,  the  said  C.  D.,  and  in  the  necessary  defense  of 
himself,  the  said  C.  D.,  against  the  said  A.  B.,  which  are  the 
supposed  trespasses  in  the  introductory  part  of  this  plea  men- 
tioned, and  whereof  the  said  A.  B.  hath  above  complained. 
And  this  the  said  C.  D.  is  ready  to  verify.  Wherefore  he 
prays  judgment  if  the  said  A.  B.  ought  to  have  or  maintain 
his  aforesaid  action  thereof  against  him. 

REPLICATION. 

And  as  to  the  said  plea  by  the  said  defendant  last  above 
pleaded  in  bar  to  the  said  several  trespasses  in  the  introduc- 
tory part  of  that  plea  mentioned,  the  said  A.  B.  says  that,  by 
reason  of  anything  therein  alleged,  he  ought  not  to  be  barred 
from  having  and  maintaining  his  aforesaid  action  thereof 
against  the  said  C.  D.,  because  he  says  that  the  said  C.  D.  at 
the  said  time  when,  etc.,  of  his  own  wrong,  and  without  the 
cause  in  his  said  last  mentioned  plea  alleged,  committed  the 
said  several  trespasses  in  the  introductory  part  of  that  plea 
mentioned  in  manner  and  form  as  the  said  A.  B.  hath  above 
complained;  and  this  he  prays  may  be  inquired  of  by  the 
country,  (p) 

This  species  of  traverse  occurs  in  the  replication,  in  actions 
of  trespass  and  trespass  on  the  case,  but  is  not  used  in  any 
other  stage  of  the  pleading.  In  these  actions  it  is,  in  general, 
the  proper  form,  wherever  the  replication  traverses  the  plea 
in  bar.  But  to  this  there  are  the  following  large  excep- 
tions: When  the  matter  to  be  traversed  consists  either  of 
matter  of  title  or  interest,  or  authority  of  law,  or  authority  in 
fact,  derived  from  the  opposite  party,  or  matter  of  record,  in 
any  of  these  cases  the  replication  de  injuria  is  generally  im- 
proper, (q)  *  and  the  traverse  should  be  in  the  common  form , 
that  is,  in  the  words  of  the  allegation  traversed.1 

(p)  a  Chitty,  523,  642. 

(g)  Crogate's  Case,  8  Rep.  67  a;  Doct.  PI.  113, 115.  See  the  law  on  this  subject  more 
fully  explained,  and  the  exceptions  noticed,  1  Chitty,  578;  1  Arch.  288. 

1  As  to  the  nature  of  this  replica-  2It  is  proper  only  to  matters  of  ex- 

tion,  see  Selby  v.  Bardon,  3  B.  &  Aid.  cuse,  not  to  matters  of  justification. 

2:  9  Bing.  756;  Ciearwater  v.  Her-  1  Chitty.  Pldg.,  pp.  *591-*594,  *626; 

edith,  1  Wall.  25.  Gerrish  v.  Trein,  3  Pick.  124;  Allen 


§  156.]        RULES   WHICH    TEND   TO   PRODUCTION   OF   ISSUE.  289 

§  156.  Of  special  traverses. —  There  is  still  another  species 
of  traverse,  which  differs  from  the  common  form,  and  which 
will  require  distinct  notice.  It  is  known  by  the  denomination 
of  a  special  traverse,  (r)  Though  formerly  in  very  frequent  oc- 
currence, this  species  has  now  fallen,  in  great  measure,  into 
disuse;  but  the  subtlety  of  its  texture,  its  tendency  to  illus- 
trate the  general  spirit  and  character  of  pleading,  and  the 
total  dearth  of  explanation  in  all  the  reports  and  treatises  with 
respect  to  its  principle,  seem,  to  justify  the  consideration  of 
it  at  greater  length,  and  in  a  more  elaborate  manner,  than 
its  actual  importance  in  practice  demands.  Of  the  special 
traverse  the  following  is  an  example : 

EXAMPLE  1. 

DECLARATION. 

In  covenant  for  non-payment  of  rent;  by  the  heir  of  a  lessor  against  a  lessee. 

to  wit,  C.  D.  was  summoned  to  answer  A.  B.,  son 

and  heir  of  E.  B.,  his  late  father,  deceased,  of  a  plea  that  he 
keep  with  the  said  A.  B.  the  covenant  made  by  the  said  C.  D. 
with  the  said  E.  B.,  according  to  the  force,  form  and  effect  of 
a  certain  indenture  in  that  behalf  made  between  them.  And 
thereupon  the  said  A.  B.,  by ,  his  attorney,  com- 
plains: For  that  whereas  the  said  E.  B.,  at  the  time  of  mak- 
ing the  indenture  hereinafter  mentioned,  was  seized  in  his 
demesne  as  of  fee,  of  and  in  the  premises  hereinafter  men- 
tioned to  be  demised  to  the  said  C.  D.  And,  being  so  seized, 

he,  the  said  E.  B.,  in  his  life-time,  to  wit,  on  the day  of 

,  in  the  year  of  our  Lord ,  at ,  in  the  county  of 

• ,  by  a  certain  indenture  tjien  and  there  made  between 

the  said  E.  B.  of  the  one  part  and  the  said  C.  D.  of  the  other 
part  (one  part  of  which  said  indenture,  sealed  with  the  seal 
of  the  said  C.  D.,  the  said  A.  B.  now  brings  here  into  court, 

Cr)  It  is  also  called  a  formal  traverse;  or,  a  traverse  with  an  dbsque  hoc. 

v.  Scott,  13  111.  80;  Clark  v.  Downing,  in  trespass  quare  clausum  with  alia 

55  Vt.  259;  Ayres  v.  Kelley,  11  111.  17;  enormia  that  the  defendant  seduced 

Six  Carpenters'  Case,  8  Coke,  146,  the  plaintiff's  wife  or  daughter,  if 

1  Sm.  Ld.  Cas.  (8th  ed.)  257;  Smith  v.  the  defendant  justify  the  entry  under 

Pierce,  110  Mass.  35.    Matters  which  license  the  plaintiff  must  new  assign, 

show  the  defendant  a  trespasser  ab  Moran  v.  Dawes,  4  Cow.  412;  Hub- 

initio  must  be  shown  by  a  special  ble  v.  Wheeler,  2  Aik.  539;  Bennett 

replication  new  assigning.     Hannes  v.  Mclntire,  121  Ind.  131.    The  form 

v.  Edes,  15  Mass.  347;  Taylor  v.  Cole,  of  the  special  replication.     1  Arch. 

3  Term,  292;  Ayres  v.  Kelley,  supra;  Nisi  Prius,  pp.  485-528. 
McConnell  v.  Kibb,  33  111.  175.    Thus, 


290  RULES   WHICH   TEND   TO  PRODUCTION   OF   ISSUE.        [§  156, 

the  date  whereof  is  the  day  and  year  aforesaid),  for  the  con- 
siderations therein  mentioned,  did  demise,  lease,  set,  and  to 
farm  let,  unto  the  said  C.  D.,  his  executors,  administrators 
and  assigns,  a  certain  messuage  or  dwelling-house,  with  the 

appurtenances,  situate  at ,  to  have  and  to  hold  the  same 

unto  the  said  C.  D.,  his  executors,  administrators  and  assigns, 

from  the day  of then  last  past,  to  the  full  end  and 

term  of years  thence  next  ensuing,  and  fully  to  be  com- 
plete and  ended,  yielding  and  paying  therefor  yearly,  and 
every  year,  to  the  said  E.  B.,  his  heirs  or  assigns,  the  clear 
yearly  rent  or  sum  of  — : —  pounds,  payable  quarterly,  at  the 
four  most  usual  feasts  or  days  of  payment  of  rent  in  the  year; 
that  is  to  say,  on  the  25th  day  of  March,  the  24th  day  of  June,, 
the  29th  day  of  September  and  the  25th  day  of  December,  in 
each  and  every  year,  in  equal  portions.  And  the  said  C.  D. 
did  thereby,  for  himself,  his  executors,  administrators  and  as- 
signs, covenant,  promise  and  agree  to  and  with  the  said  E.  B., 
his  heirs  and  assigns,  that  he,  the  said  C.  B.,  his  executors, 
administrators  or  assigns,  should  'and  would  well  and  truly 
pay,  or  cause  to  be  paid,  to  the  said  E.  B.,  his  heirs  or  assigns, 

the  said  yearly  rent  or  sum  of  pounds  at  the  several 

days  and  times  aforesaid,  as  by  the  said  indenture,  reference 
being  hereunto  had,  will  more  fully  appear.  By  virtue  of 
which  said  demise,  the  said  C.  D.  afterwards,  to  wit,  on  the 

day  of ,  in  the  year  ,  entered  into  the  said 

premises,  and  was  thereof  possessed  for  the  said  term,  the  re- 
version thereof  belonging  to  the  said  E.  B.  and  his  heirs. 
And  he,  the  said  C.  D.,  being  so  possessed,  and  the  said  E.  B., 
being  so  seized  of  the  said  reversion  in  his  demesne  as  of  fee, 

he,  the  said  E.  B.,  afterwards,  to  wit,  on  the day  of , 

in  the  year  aforesaid,  at aforesaid,  in  the  county  afore- 
said, died  so  seized  of  the  said  reversion.  After  whose  decease, 
the  said  reversion  descended  to  the  said  A.  B.,  as  son  and  heir 
of  the  said  E.  B.,  whereby  the  said  A.  B.  was  seized  of  the  re- 
version of  the  said  demised  premises  in  his  demesne  as  of  fee. 
And  the  said  A.  B.  in  fact  says  that  he,  the  said  A.  B.,  being 
so  seized,  and  the  said  C.  D.  being  so  possessed  as  aforesaid, 

afterwards,  and  during  the  said  term,  to  wit,  on  the day 

of ,  in  the  year  of  our  Lord ,  at ,  in  the  county  of 

,  a  large  sum  of  money,  to  wit,  the  sum  of pounds 

of  the  rent  aforesaid,  for  divers,  to  wit, years  of  the  said 

term  then  elapsed,  became  and  was  due  and  owing,  and  still  is 
in  arrear  and  unpaid,  to  the  said  A.  B.,  contrary  to  the  form  and 
effect  of  the  said  covenant  in  that  behalf.  And  so  the  said  A.  B. 
in  fact  saith  that  the  said  C.  D.,  although  often  requested, 
hath  not  kept  his  said  covenant  in  that  behalf,  but  hath  broken 
the  same;  and  to  keep  the  same  hath  hitherto  wholly  re- 
fused, and  still  refuses,  to  the  damage  of  the  said  A.  B.  of 

pounds ;  and  therefore  he  brings  his  suit,  etc. 


§  156.]        EULES   WHICH    TEND    TO   PRODUCTION   OF    ISSUE.  291 

PLEA. 

And  the  said  C.  D.,  by ,  his  attorney,  comes  and 

defends  the  wrong  and  injury,  when,  etc.,  and  says  that  the 
said  A.  B.  ought  not  to  have  or  maintain  his  aforesaid  action 
against  him,  because  he  says  that  the  said  E.  B.,  deceased,  at 
the  time  of  the  making  of  the  said  indenture,  was  seized  in 
his  demesne  as  of  freehold,  for  the  term  of  his  natural  life,  of 
and  in  the  said  demised  premises  with  the  appurtenances,  and 
continued  so  seized  thereof  until  and  at  the  time  of  his  death; 
and  that,  after  the  making  of  the  said  indenture  and  before 

the  expiration  of  the  said  term,  to  wit,  on  the day  of 

,  in  the  year  of  our  Lord ,  at aforesaid,  the  said 

E.  B.  died ;  whereupon  the  term  created  by  the  said  indenture 
wholly  ceased  and  determined :  Without  this,  that,  after  the 
making  of  the  said  indenture,  the  reversion  of  the  said  de- 
mised premises  belonged  to  the  said  E.  B.  and  his  heirs  in 
manner  and  form  as  the  said  A.  B.  hath  in  his  said  declaration 
alleged.  And  this  the  said  C.  D.  is  ready  to  verity.  Where- 
fore he  prays  judgment  if  the  said  A.  B.  ought  to  have  or 
maintain  his  aforesaid  action  against  him.  (s) 

The  substance  of  this  plea  is  that  the  father  was  seized  for 
life  only,  and  therefore  that  the  term  terminated  at  his  death, 
which  involves  a  denial  of  the  allegation  in  the  declaration 
that  the  reversion  belonged  to  the  father  in  fee.     The  defend- 
ant's course  was  therefore  to  traverse  the  declaration.  (£)    But 
it  will  be  observed  that  he  does  not  traverse  it  in  the  common 
form.     If  the  common  traverse  were  adopted  in  this  case  the 
plea  would  be :  "  And  the  said  C.  D.,  by ,  his  at- 
torney, comes  and  defends  the  wrong  and  injury,  when,  etc., 
and  says  that  the  said  A.  B.  ought  not  to  have  or  maintain 
his  aforesaid  action  against  him,  because  he  says  that  after 
the  making  of  the  said  indenture  the  said  reversion  of  the 
said  demised  premises  did  not  belong  to  the  said  E.  B.  and 
his  heirs  in  manner  and  form  as  the  said  A.  B.  hath  in  his 
said  declaration  alleged.     And  of  this  the  said  C.  D.  puts 
himself  upon  the  country."     But  instead  of  this  simple  denial 
and  tender  of  issue  the  defendant  adopts  a  special  traverse.1 
This  first  sets  forth  the  new  affirmative  matter  that  E.  B. 
was  seized  for  life,  etc. ;  and  then  annexes  to  this  the  denial 
that  the  reversion  belonged  to  him  and  his  heirs  by  that  pe- 

(*)  2  Chitty,  503.    And  see  Boudnell  v.  Roberts,  2  Wils.  143;  Palmer  v.  Elkins,  Lord  Ray. 
1550. 

(t)  See  Appendix,  note  (47). 

1  Tliis  form  was  used  in  Pullman  Co.  v.  People,  175  111.  125,  a  quo  warranto 
proceeding. 


292  ETJLES   WHICH   TEND   TO   PRODUCTION   OF   ISSUE.        [§  156. 

culiar  and  barbarous  formula,  Without  this,  that,  etc.;  and 
lastly,  does  not  (like  a  common  traverse)  tender  issue,  but  con- 
cludes with  the  words :  "  And  this  the  said  C.  D.  is  ready  to 
verify,  wherefore  he  prays  judgment,"  etc.,  which  is  called  a 
verification  and  prayer  of  Judgment,1  and  is  the  constant  con- 
clusion of  all  pleadings  in  which  issue  is  not  tendered.  The 
affirmative  part  of  the  special  traverse  is  called  its  induce- 
ment; (u)  the  negative  part  is  called  the  absque  hoc, —  thoso 
being  the  Latin  words  formerly  used,  and  from  which  the 
modern  expression,  without  this,  is  translated.  The  different 
parts  and  properties  here  noticed  are  all  essential  to  a  special 
traverse,  which  must  always  thus  consist  of  an  inducement,  a 
denial  and  a  verification,  (x) 

By  way  of  farther  illustration,  and  as  the  foundation  for 
some  subsequent  remarks  on  the  nature  and  meaning  of  a 
special  traverse,  it  will  be  necessary  here  to  add  some  other 
examples  of  this  form  of  pleading. 

EXAMPLE  2. 

PLEA. 
In  trespass  quare  clausum  fregit. 

And  for  a  farther  plea,  as  to  the  breaking  and  entering  the 
said  close,  in  which,  etc.,  and  the  treading  down,  trampling 
upon,  consuming  and  spoiling  the  said  grass  and  herbage,  as 
above  supposed  to  have  been  done,  the  said  0.  D.,  by  leave  of 
the  court  here  for  this  purpose  first  had  and  obtained,  accord- 
ing to  the  form  of  the  statute  in  such  case  made  and  provided, 
says  that  the  said  A.  B.  ought  not  to  have  or  maintain  his  afore- 
said action  thereof  against  him,  because  he  says  that  before 

the  said  time  when,  etc.,  to  wit,  on  the day  of ,  in 

the  year  ,  one  J.  N.,  clerk,  prebendary  of  the  prebend 

of  N.,  in  the  cathedral  church  of  H.,  was  seized  in  his  de- 
mesne, as  of  fee,  in  right  of  the  said  prebend,  of  and  in  cer- 
tain tenements,  whereof  the  said  close  in  which,  etc.,  then 
and  from  thenceforth  hitherto  hath  been  parcel.  And  being 
so  seized  before  the  said  time  when,  etc.,  to  wit,  on  the  day 
and  year  last  aforesaid,  at aforesaid,  in  the  county  afore- 

(M)  Bac.  Ab.,  Pleas,  etc.,  H.  1. 

(*)  The  denial,  however,  may  be  Introduced  by  other  forms  of  expression  besides  absijua 
hoc.  Et  non  will  suffice.  Bennett  v.  Filkins,  1  Sauiid.  21;  Walters  v.  Hodges,  Lut.  1625. 

1  See  1  Saund.  103&.    Some  of  the    under  HiL  Rules,  4  Will  IV.,  the  con- 
later  American  editions  of  Stephen    elusion  is  to  the  country, 
are  misleading  as  to  this  point,  for 


§  156.]        RULES   WHICH   TEND   TO   PRODUCTION   OF    ISSUE.  293 

said,  by  a  certain  indenture,  sealed  with  the  seal  of  the  said 
I.  N.  (and  now  shown  to  the  court  here,  the  date  whereof  is 
the  day  and  year  last  aforesaid),  the  said  I.  N.  demised  the 
said  tenements,  with  the  appurtenances  (among  other  things), 
to  the  said  C.  D.,  by  the  name  of  all  his  prebend  of  N.  afore- 
said, etc.,  to  have  and  to  hold  to  the  said  C.  D.  and  his  as- 
signs, from  the day  of  then  next,  to  the  end  and 

term  of  fifty  years  thence  next  following,  yielding  and  pay- 
ing therefor  yearly,  during  the  said  term,  to  the  said  pre- 
bendary and  his  successors,  the  sum  of  pounds,  at  the 

feasts  of and ,  by  equal  portions.     By  virtue  of  which 

demise  the  said  C.  D.  was  possessed  (among  other  things)  of 
the  said  tenements,  with  the  appurtenances.  And  being  so 
possessed,  one  I.  H.,  bishop  of  ,  then  being  true  and  un- 
doubted patron  and  ordinary  of  the  said  prebend  of  N.,  after- 
wards, to  wit,  on  the  day  of  ,  in  the  year ,  at 

,  by  his  writing,  sealed  with  his  common  seal  (and  now 

to  the  court  here,  the  date  whereof  is  the  day  and  year  last 
aforesaid),  ratified,  approved  and  confirmed  the  said  estate 
and  interest  of  the  said  C.  D.  in  the  premises.  And  after- 
wards one  I.  E.,  master  of  arts,  dean  of  the  said  cathedral 
church,  and  the  chapter  of  the  said  church  for  the  time 

being,  (y)  to  wit,  on  the  day  of  ,  in  the  year , 

at ,  by  their  writing,  sealed  with  their  common  seal  (and 

now  shown  to  the  court  here,  the  date  whereof  is  the  day  and 
year  last  aforesaid),  ratified,  approved  and  confirmed  the  said 
estate  and  interest  of  the  said  C.  D.  in  the  premises.  And  the 
said  A.  B.,  claiming  that  said  tenements,  with  appurtenances, 
by  color  of  a  certain  charter  of  demise  to  him  thereof  made, 
for  the  term  of  his  life,  by  the  said  I.  N.,  long  before  the  said 
demise  to  the  said  C.  D.,  in  form  aforesaid  made  (whereas 
nothing  of  the  said  tenements,  with  the  appurtenances,  ever 
passed  into  the  possession  of  the  said  A.  B.  by  that  charter), 
before  the  said  time  when,  etc.,  entered  into  the  said  tene- 
ments, with  the  appurtenances ;  upon  whose  possession  whereof 
the  said  C.  D.,  at  the  said  time  when,  etc.,  entered  into  the 
said  tenements  with  the  appurtenances,  and  broke  and  en- 
tered the  said  close  in  which,  etc.,  and  trod  down,  trampled 
upon,  consumed  and  spoiled  the  grass  and  herbage  there 
growing  and  being,  as  it  was  lawful  for  him  to  do,  for  the 
cause  aforesaid ;  which  are  the  same  trespasses  in  the  intro- 
ductory part  of  this  plea  mentioned,  and  whereof  the  said 
A.  B.  hath  above  complained.  And  this  the  said  C.  D.  is 
ready  to  verify.  Wherefore  he  prays  judgment  if  the  said 
A.  B.  ought  to  have  or  maintain  his  aforesaid  action  thereof 
against  him,  etc. 

(y)  If  the  bishop  happen  to  be  patron  as  well  as  ordinary,  the  confirmation  or  the  dean 
and  chapter,  as  well  as  the  bishop,  is  necessary.    Co.  Litt.  300  b. 


294 


RULES    WHICH   TEND   TO   PEODUCTION    OF    ISSUE.        [§  156. 
REPLICATION. 


And  as  to  the  said  plea,  by  the  said  C.  D.  last  above  pleaded, 
as  to  the  said  several  trespasses  in  the  introductory  part  of 
that  plea  mentioned,  the  said  A.  B.  says  that  by  reason  of  any 
thing  therein  alleged  he  ought  not  to  be  barred  from  having 
and  maintaining  his  aforesaid  action  thereof  against  him;  be- 
cause, protesting  that  the  said  I.  N.  did  not  demise  the  said 
tenements,  with  the  appurtenances,  to  the  said  C.  D.,  as  the 
said  C.  D.  hath  above  alleged,  for  replication,  nevertheless, 
in  this  behalf,  the  said  A.  B.  says  that  the  said  C.  D.,  on  the 

said day  of ,  in  the  year  ,  at  aforesaid,  in 

the  county  aforesaid,  brought  to  the  said  bishop  a  certain 
writing  of  demise  of  the  said  tenements  by  the  said  I.  N.  to 
the  said  C.  D.,  and  then  and  there  desired  the  said  bishop  to 
confirm  the  said  writing,  sealed  with  the  seal  of  the  said  I.  N., 
in  which  writing  no  number  of  years  was  then  written,  which 
the  said  C.  D.  was  to  have  in  the  said  tenements,  which  said 
writing  of  demise  the  said  bishop  then  and  there  confirmed, 
and  sealed  the  said  writing  with  his  seal.  And  before  the 

said  time,  when,  etc.,  to  wit,  on  the  day  of  ,  in  the 

year ,  at aforesaid,  in  the  county  aforesaid,  the  said 

I.  N.  died.  After  whose  death,  and  before  the  said  time, 
when,  etc.,  the  said  bishop,  as  the  true  and  undoubted  patron 
and  ordinary  of  the  said  prebend  so  being  vacant  by  the  death 
of  the  said  I.  N»,  collated  the  same  on  his  clerk,  the  said  A.  B., 
and  caused  him  to  be  justly  instituted  and  inducted,  and  put 
in  corporal  possession  of  the  said  prebend.  Whereby  the  said 
A.  B.  was  seised  of  the  said  tenements,  with  the  appurte- 
nances, in  his  demesne,  as  of  fee,  in  right  of  his  said  prebend, 

until  the  said  C.  D.,  on  the day  of ,  in  the  year , 

with  force  and  arms  broke  and  entered  the  close  of  the  said 
A.  B.,  at aforesaid,  and  trod  down,  trampled  upon,  con- 
sumed and  spoiled  the  grass  and  herbage  therein  to  the  value 

of pounds,  as  he  hath  above  complained.     Without  this, 

that  the  said  bishop,  by  his  said  writing,  ratified,  approved  and 
confirmed  the  estate  and  interest  of  the  said  C.  D.  in  the  prem- 
ises, in  manner  and  form  as  the  said  C.  D.  hath,  in  his  said  last 
mentioned  plea,  alleged.  And  this  the  said  A.  B.  is  ready  to 
verify.  Wherefore  he  prays  judgment,  and  his  damages  by 
him  sustained,  by  reason  of  the  said  trespasses,  in  the  introduc- 
tory part  of  that  plea  mentioned,  to  be  adjudged  to  him,  etc.  (z) 
In  both  the  preceding  examples  it  will  be  observed  that  the 
inducement  contains  new  affirmative  matter.  Bu-t  a  special 
traverse  may  also  occur  in  cases  where  the  denial  is,  in  its 
nature,  unconnected  with  any  new  affirmative  matter  that 
can  be  stated  by  way  of  inducement.  Of  this  the  following 
is  an  example: 

(z)  See  the  precedent,  PI.  Gen.  609. 


§  156.]      BtTLES  WHICH  TEND  TO  PKODCCTION  OF  ISSUE.  295 

EXAMPLE  3. 

PLEA. 
In  trespass  quare  clausum  fregit. 

And  for  a  farther  plea  in  this  behalf,  as  to  the  breaking 
and  entering  the  said  close,  in  which,  etc.,  and  with  feet  in 
walking,  treading  down,  trampling  upon,  consuming  and  spoil- 
ing the  said  grass,  as  above  supposed  to  have  been  done,  the 
said  C.  D.,  by  leave  of  the  court  here  for  this  purpose  first  had 
and  obtained,  according  to  the  form  of  the  statute  in  such 
case  made  and  provided,  says  that  the  said  A.  B.  ought  not  to 
have  or  maintain  his  aforesaid  action  thereof  against  him ; 
because  he  says  that  one  "W.  F.,  before  and  at  the  same  time, 
when,  etc.,  was,  and  yet  is,  seized  in  his  demesne,  as  of  fee,  of 
and  in  a  certain  messuage  or  tenement  and  lands,  with  the 
appurtenances,  situate  and  being  at ,  in  the  county  afore- 
said. And  that  the  said  W.  F.  and  all  those  whose  estate  he 
hath,  and  at  the  same  time  when,  etc..  had  of  and  in  the  said 
messuage  or  tenement  and  lands,  with  the  appurtenances,  from 
time  whereof  the  memory  of  man  is  not  to  the  contrary,  have 
had  and  used,  and  been  accustomed  to  have  and  use,  and  of 
right  ought  to  have  and  use,  for  himself  and  themselves,  and 
his  and  their  farmers  and  tenants,  occupiers  of  the  said  mes- 
suage or  tenement  and  lands,  with  the  appurtenances,  for  the 
time  being,  a  certain  way  from  the  said  messuage  or  tenement 
and  lands,  with  the  appurtenances,  into,  through  and  over  the 

said  close,  in  which,  etc.,  unto  a  certain  place  called ;  and 

so  from  thence  back  again  into,  through  and  over  the  said 
close,  in  which,  etc.,  unto  the  said  messuage  or  tenement  and 
lands,  with  the  appurtenances,  to  go,  return,  pass  and  repass 
on  foot  at  all  times  of  the  year,  at  his  and  their  free  will  and 
pleasure,  as  to  the  said  messuage  or  tenements  and  lands,  with 
the  appurtenances  belonging  and  appertaining.  Wherefore 
the  said  C.  D.,  as  the  servant  of  the  said  W.  F.  and  by  his  com- 
mand, at  the  said  several  times  when,  etc.,  having  occasion 
to  use  that  way,  broke  and  entered  the  said  close,  in  which, 
etc.,  and  passed  and  repassed  on  foot  through  and  over  the 
said  way  there,  using  the  said  way  for  the  purpose  and  on  the 
occasion  aforesaid,  as  it  was  lawful  for  him  to  do  for  the  cause 
aforesaid.  And  in  so  doing  the  said  C.  D.  necessarily  and  un- 
avoidably at  the  said  time,  when,  etc.,  with  his  feet  in  walk- 
ing, trod  down,  trampled  upon,  consumed  and  spoiled  a  little 
of  the  grass  then  growing  and  being  in  the  said  way  there; 
doing  as  little  damage  as  he  possibly  could  to  the  said  A.  B. 
on  that  occasion.  Which  are  the  same  supposed  trespasses  in 
the  introductory  part  of  this  plea  mentioned,  and  whereof  the 
said  A.  B.  hath  above  complained.  And  this  the  said  C.  D. 
is  ready  to  verify.  Wherefore  he  prays  judgment  if  the  said 
A.  B.  ought  to  have  or  maintain  his  aforesaid  action  thereof 
against  him,  etc. 


296  RULES   WHICH   TEND   TO    PRODUCTION   OF   ISSUE.        [§  156. 

REPLICATION. 

And  as  to  the  said  plea  by  the  said  C.  D.  last  above  pleaded, 
as  to  the  several  trespasses  in  the  introductory  part  of  that 
plea  mentioned,  the  said  A.  B.  says  that  by  reason  of  any- 
thing therein  alleged  he  ought  not  to  be  barred  from  having 
and  maintaining  his  aforesaid  action  thereof  against  him;  be- 
cause the  said  A.  B.  says  that  he,  the  said  C.  D.,  of  his  own 
wrong,  broke  and  entered  the  said  closo  in  which,  etc.,  and 
with  feet  in  walking  trod  down,  trampled  upon,  consumed 
and  spoiled  the  grass  there  then  growing  and  being,  as  the 
said  A.  B.  hath  above  complained.  Without  this,  that  the  said 
~VV.  F.,  and  all  those  whose  estate  he  hath,  and  at  the  said  sev- 
eral times  when,  etc.,  had  of  and  in  the  said  messuage,  or  tene- 
ment and  lands,  with  the  appurtenances,  from  time  whereof  the 
memory  of  man  is  not  to  the  contrary,  have  had  and  used,  and 
been  accustomed  to  have  and  use,  and  of  right  ought  to  have 
and  use,  for  himself  and  themselves,  and  his  and  their  farmers 
and  tenants,  occupiers  of  the  said  messuage,  or  tenement  and 
lands,  with  the  appurtenances,  for  the  time  being,  a  certain 
way  from  the  said  messuage,  or  tenement  and  lands,  with  the 
appurtenances,  into,  through  and  over  the  said  close,  in  which, 

etc.,  unto  a  certain  place  called ,  and  so  from  thence  back 

again  into,  through  and  over  the  said  close,  in  which,  etc., 
unto  the  said  messuage,  or  tenement  and  lands,  with  the  ap- 
purtenances, to  go,  return,  pass  and  repass  on  foot  at  all  times 
of  the  year,  at  his  and  their  free  will  and  pleasure,  as  to  the 
said  messuage,  or  tenement  and  lands,  with  the  appurtenances, 
belonging  and  appertaining,  in  manner  and  form  as  the  said 
C.  D.  hath  in  his  said  last-mentioned  plea  alleged.  And  this 
the  said  A.  B.  is  ready  to  verify.  Wherefore  he  prays  judg- 
ment, and  his  damages  by  him  sustained  by  reason  of  the  said 
trespasses,  in  the  introductory  part  of  that  plea  mentioned, 
to  be  adjudged  to  him,  etc.  (a) l 

In  this  last  example  it  will  be  observed  that  there  is  no  new 
affirmative  matter  contained  in  the  inducement.  For  it  con- 
sists of  a  mere  repetition  of  the  trespasses  that  had  been  ante- 
cedently alleged  in  the  declaration,  and  an  allegation  that  they 
were  committed  de  injuria  sua propria,  or  of  the  defendant's 
own  wrong.  In  this  respect,  therefore,  viz.,  in  the  want  of  new 
affirmative  matter  in  the  inducement,  this  last  example  differs 
from  the  two  first  given. 

The  regular  method  of  pleading  in  answer  to  a  special 

(a)  See  the  precedents,  9  Went  233,  233. 

1  For  the  precedents,  see  Wilcox  v.      Prosser  v.  Woodward,  21  Wend.  205; 
Kinzie,  3  Scam.  218;  Yates*  PL  144;       Calumet  Co.  v.  Mabie,  66  111.  App.  235. 


§  15 7.]        RULES   WHICH.  TEND   TO   PRODUCTION   OF   ISSUE.  297, 

traverse  is  to  tender  issue  upon  it,  with  a  repetition  of  the 
allegation  traversed.  Accordingly,  in  the  first  example,  issue 
would  be  tendered  in  the  replication,  thus: 

REPLICATION. 

To  the  plea,  p.  291. 

And  as  to  the  said  plea  by  the  said  C.  D.  above  pleaded, 
the  said  A.  B.  says  that  by  reason  of  anything  therein  al- 
leged he  ought  not  to  be  barred  from  having  and  maintain- 
ing his  aforesaid  action  against  the  said  C.  D.,  because  the 
said  A.  B.  says  that  after  the  making  of  the  said  indenture 
the  reversion  of  the  said  demised  premises  belonged  to  the 
said  E.  B.  and  his  heirs,  in  manner  and  form  as  the  said  A.  B. 
hath  in  said  declaration  above  alleged.  And  this  he  prays 
may  be  inquired  of  by  the  country. 

And  so  in  the  remaining  examples,  issue  would  be  tendered 
in  the  rejoinder  by  a  similar  repetition  of  the  matter  which 
the  traverse  denies. 

§  157.  Effect  and  object  of  special  traverses. —  It  will  be 
perceived,  therefore,  that  the  effect  of  a  special  traverse  is  to 
postpone  the  issue  to  one  stage  of  the  pleading  later  than  it 
would  be  attained  by  a  traverse  in  the  common  form.  For, 
if  the  defendant  had,  in  the  first  example,  traversed  without 
an  inducement,  and  concluded  to  the  country,  it  would  only 
have  remained  for  the  plaintiff  to  add  the  similiter  —  so  that 
the  issue  would  have  been  joined  in  the  replication.  On  the 
other  hand,  upon  the  plan  of  special  traverse,  the  issue  is  not 
tendered  till  the  replication;  and  consequently  the  similiter 
still  remains  to  be  added  in  a  rejoinder  by  the  defendant. 

The  use  and  object  of  a  special  traverse  is  the  next  subject 
for  consideration.  Though  this  relic  of  the  subtle  genius  of 
the  ancient  pleaders  has  now  fallen  (as  above  stated)  into 
comparative  disuse,  it  is  still  of  occasional  occurrence;  and  it 
is  remarkable,  therefore,  that  no  author  should  have  hitherto 
offered  any  explanation  of  the  objects  for  which  it  was  origi- 
nally devised,  and  in  a  view  to  which  it  continues  to  be,  in 
some  cases,  adopted,  (b)  The  following  remarks  are  submitted 
as  those  which  have  occurred  to  the  writer  of  this  work  on  a 
subject  thus  barren  of  better  authority.  The  general  design 
of  a  special  traverse,  as  distinguished  from  a  common  one,  is 

(6)  See  Appendix,  note  (48). 


298  BULES   WHICH    TEND   TO   PRODUCTION   OF   ISSUE.        [§  157. 

to  explain  or  qualify  the  denial,  instead  of  putting  it  in  the 
direct  and  absolute  form;  and  there  were  several  different 
views,  in  reference  to  one  or  other  of  which  the  ancient 
pleaders  seem  to  have  been  induced  to  adopt  this  course. 

First.  A  simple  or  positive  denial  may,  in  some  cases,  be 
rendered  improper  by  its  opposition  to  some  general  rule  of 
law;  Thus,  in  the  example  of  special  traverse  first  above 
given,  it  would  be  improper  to  traverse  in  the  common  form, 
viz. :  "  that  after  the  making  of  the  said  indenture  the  rever- 
sion of  the  said  demised  premises  did  not  belong  to  the  said 
E.  B.  and  his  heirs,"  etc.,  because,  by  a  rule  of  law,  a  tenant  is 
precluded  (or,  in  the  language  of  pleading,  estopped]  from  al- 
leging that  his  lessor  had  no  title  in  the  premises  demised;  (c) 
and  a  general  assertion  that  the  reversion  did  not  belong  to 
him  and  his  heirs  would  seem  to  fall  within  the  prohibition 
of  that  rule.  But  a  tenant  is  not  by  law  estopped  to  say  that 
his  lessor  had  only  a  particular  estate,  which  has  since  ex- 
pired. (cT)  In  a  case,  therefore,  in  which  the  declaration  al- 
leged a  seisin  in  fee  in  the  lessor,  and  the  nature  of  the  defense 
was  that  he  had  a  particular  estate  only  (e.  g.,  an  estate  for 
life),  since  expired,  the  pleader  would  resort,  as  in  the  first  ex- 
ample, to  a  special  traverse — setting  forth  the  lessor's  limited 
title  by  way  of  inducement,  and  traversing  his  seisin  of  the 
reversion  in  fee  under  the  absque  hoc.  He  thus  would  avoid 
the  objection  that  might  otherwise  arise  on  the  ground  of 
estoppel. 

Secondly.  A  common  traverse  may  sometimes  be  inexpedi- 
ent, as  involving  in  the  issue  in  fact  some  question  which  it 
would  be  desirable  rather  to  develop  and  submit  to  the  judg- 
ment of  the  court  as  an  issue  in  law.  This  may  be  illustrated 
by  the  second  example  of  special  traverse  above  given.  In 
that  case  it  would  seem  that  a  lease  not  expressing  any  certain 
term  of  demise  had  been  brought  to  the  ordinary  for  his  con- 
firmation; that  he  had  accordingly  confirmed  it  in  that  shape 
under  his  seal;  and  that  the  instrument  was  afterwards  filled 
up  as  a  lease  for  fifty  years.  The  party  relying  upon  this 
lease  states  that  the  demise  was  to  the  defendant  for  the  term 
of  fifty  years,  and  that  the  ordinary  "ratified,  approved  and 

(c)  Black  v.  Foster,  8  T.  E.  487. 
(d)Ibid. 


§  157.]        RULES   WHICH   TEND   TO   PRODUCTION   OF   ISSUE.  290 

confirmed  his  estate  and  interest  in  the  premises."  (e)  If  the 
opposite  party  were  to  traverse  in  the  common  form  —  "  that 
the  ordinary  did  not  ratify,  approve  and  confirm  his  estate 
and  interest  in  the  premises,  etc.,"  and  so  tender  issue  of  fact 
on  that  point  —  it  is  plain  that  there  would  be  involved  in 
such  issue  the  following  question  of  law,  viz. :  whether  the 
confirmation  by  the  ordinary  of  a  lease  in  which  the  length 
of  the  term  is  not  at  the  time  expressed  be  valid?  This  ques- 
tion would  therefore  fall  under  the  decision  of  the  jury,  to 
whom  the  issue  in  fact  is  referred,  subject  to  the  direction  of 
the  judge  presiding  at  nisi  prius,  and  the  ultimate  revision 
of  the  court  in  bank.  Now  it  may,  for  many  reasons,  be  de- 
sirable that,  without  going  to  a  trial,  this  question  should 
rather  be  brought  before  the  court  in  the  first  instance,  and 
that  for  that  purpose  an  issue  in  law  should  be  taken.  The 
pleader,  therefore,  in  such  a  case,  would  state  the  circum- 
stances of  the  transaction  in  an  inducement  —  substituting  a 
special  for  a  common  traverse.  As  the  whole  facts  thus  appear 
on  the  face  of  the  pleading,  if  his  adversary  means  to  contend 
that  the  confirmation  was  under  the  circumstances  valid  in 
point  of  law,  he  is  enabled  by  this  plan  of  special  traverse  to 
raise  th'e  point  by  demurring  to  the  replication,  on  which  de- 
murrer a  question  of  law  arises  for  the  adjudication  of  the 
court. 

By  these  reasons  and  sometimes  by  others  also,  which  the 
reader,  upon  examination  of  different  examples,  may,  after 
these  suggestions,  readily  discover  for  himself,  the  ancient 
pleader  appears  to  have  been  actuated  in  his  frequent  adop- 
tion of  an  inducement  of  new  affirmative  matter,  tending  to 
explain  or  qualify  the  denial.  (/")  But  though  these  reasons 
seem  to  show  the  purpose  of  the  inducement,  they  do  not  ac- 
count for  the  two  other  distinctive  features  of  the  special 
traverse,  viz.,  the  absque  hoc,  and  the  conclusion  with  a  verifi- 
cation. For  it  will  naturally  suggest  itself  that  the  affirma- 
tive matter  might,  in  each  of  the  above  cases,  have  been 
pleaded  per  se,  without  the  addition  of  the  absque  hoc.  So, 
whether  the  absque  hoc  were  added  or  not,  the  pleading  might, 

(e)  This  case  would  seem  to  have  arisen  before  the  restraining  statutes;  since  which  a 
lease  by  ecclesiastical  persons,  even  with  confirmation,  is  good  for  no  longer  period  than 
twenty-one  years,  or  three  lives.  2  Bl.  Com.  320. 

(/)  See  Appendix,  note  (49). 


300  EULES   WHICH   TEND   TO   PKODUCTION   OF   ISSUE.        [§  157. 

consistently  with  any  of  the  above  reasons,  have  tendered 
issue  like  a  common  traverse  instead  of  concluding  with  a 
verification.  These  latter  forms  were  dictated  by  other  prin- 
ciples. The  direct  denial  under  the  dbsque  hoc  was  rendered 
necessary  by  this  consideration  —  that  the  affirmative  matter 
taken  alone  would  be  only  an  indirect  (or,  as  it  is  called  in 
pleading,  argumentative}  denial  of  the  precedent  statement; 
and  by  a  rule  which  will  be  considered  in  its  proper  place 
hereafter,  all  argumentative  pleading  is  prohibited.  In  order, 
therefore,  to  avoid  this  fault  of  argumentativeness,  the  course 
adopted  was  to  follow  up  the  explanatory  matter  of  the  in- 
ducement with  a  direct  denial,  (g)  Thus,  to  allege,  as  in  the 
first  example,  that  E.  B.  was  seised  for  life,  would  be  to  deny 
by  implication,  but  by  implication  only,  that  the  reversion  be- 
longed to  him  in  fee;  and  therefore,  to  avoid  argumentative- 
ness,  a  direct  denial  that  the  reversion  belonged  to  him  in  fee 
is  added  under  the  formula  of  dbsque  hoc.  (A)  "With  respect  to 
the  verification,  this  conclusion  was  adopted  in  a  special  trav- 
erse in  a  view  to  another  rule,  of  which  there  will  also  be  occa- 
sion to  speak  hereafter,  viz.,  that  wherever  new  matter  is  intro- 
duced in  a  pleading,  it  is  improper  to  tender  issue,  and  the 
conclusion  must  consequently  he  with  a  verification.  The  in- 
ducement setting  forth  new  matter  makes  a  verification  neces- 
sary in  conformity  with  that  rule. 

The  special  traverse  having,  with  these  views  and  in  this 
manner,  been  introduced  into  the  system  of  pleading,  grew  so 
much  into  fashion  as  to  be  frequently  adopted  even  in  cases 
to  which  the  original  reasons  of  the  form  were  inapplicable  — 
that  is,  to  cases  where  the  intended  denial  was,  in  its  nature, 
simple  and  absolute,  and  connected  with  no  new  matter.  This 
will  be  illustrated  by  the  last  of  the  preceding  examples.  In 
this,  the  defendant  having  pleaded  a  right  of  way,  the  object 
of  the  replication  is  merely  to  deny  that  the  right  of  way  ex- 
isted ;  and  there  is  no  reason  why  this  should  not  be  done  in 
the  simple  form  of  a  common  traverse,  viz. :  "  that  the  said 
W.  F.,  and  all  those  whose  estate,  etc.,  have  not  had  and  used, 
etc.,  a  certain  way,  etc.,  in  manner  and  form  as  alleged ; "  con- 
cluding to  the  country.  But  the  fashion  of  traversing  spe- 

(g)  3  Reeves'  Hist.  432;  Bac.  Ab.,  Pleas,  etc.,  H.  1;  Courtney  v.  Phelps,  Sid.  301;  Herring 
v.  Blacklow,  Cro.  Eliz.  80;  10  Hen.  6,  7,  pi.  21. 
(fc)  See  Appendix,  note  (50). 


§  158.]        BULKS   WHICH   TEND   TO   PRODUCTION    OF   ISSUE.  301 

cially  led  the  ancient  pleaders,  in  such  a  case  as  this  also,  to 
use  the  inducement,  the  absque  hoc,  and  the  verification;  and 
because  the  nature  of  the  case  afforded  no  allegation  of  new 
matter,  as  introductory  to  the  denial, —  in  lieu  of  this,  a  kind 
of  inducement  was  adopted,  containing,  in  fact,  no  new  mat- 
ter, but  a  mere  repetition  of  the  original  complaint,  viz.,  "  that 
the  defendant,  of  his  own  wrong,  broke  and  entered  the  close, 
etc.  Without  this,  that,  etc."  l 

§  158.  Application  of  the  special  traverse. —  Having  now 
explained  the  form,  the  effect  and  the  use  and  object  of  a 
special  traverse,  it  remains  to  show  in  what  cases  this  method 
of  pleading  is  or  ought  to  be  applied  at  the  present  day.  First, 
it  is  to  be  observed  that  this  form  was  at  no  period  applicable 
to  every  case  of  denial  at  the  pleasure  of  the  pleader.  There 
are  many  cases  of  denial  to  which  the  plan  of  special  traverse 
has  never  been  applied ;  and  which  have  always  been  and  still 
are  the  subjects  of  traverse  in  the  common  form  exclusively,  (t)2 
These  it  is  not  easy  to  enumerate  or  define;  they  are  deter- 
mined by  the  course  of  precedent,  and  in  that  way  become 
known  to  the  practitioner.  On  the  other  hand,  in  many  cases 
where  the  special  traverse  used  anciently  to  occur,  it  is  now 
no  longer  practiced.  This  relates  principally  to  that  species 
of  it  which  is  illustrated  by  the  last  example.  Even  when  the 
formula  was  most  in  repute,  the  use  of  this  species  does  not 
appear  to  have  been  regarded  as  matter  of  necessity'  and  in 
cases  which  admit  or  require  no  allegation  of  new  matter,  we 
find  the  special  and  the  common  traverse  to  have  been  indif- 
ferently used  by  the  pleaders  of  those  days.  (&)  Eut  in  modern 

(i)  Home  v.  Lewin,  Ld.  Ray.  641. 

(fc)  Rast.  Ent.  622.    And  see  Home  v.  Lewin,  1  Lord  Kay.  541. 

1  The  learning  upon  the  subject  of  more  attention  to  the  special  traverse, 

the  special  traverse  consists  merely  such    as  that  under    consideration, 

in  the  application  of  the  principles  than  any  one  who  has  written  of 

elucidated  by  Stephen  to  new  cases,  pleading."    Thomas  v.  Black  (1889.), 

See  Wilcox  v.  Kinzer,  3  Scam.  218 ;  8  Houst  (Del.)  507.    See,  also,  Doug- 

Prosser  v.  Woodward,  21  Wend.  205 ;  lass  v.  Hennessy,  15  R  L  272.    The 

Breck  v.  Blanchard,  20  N.  H.  323,  51  special   traverse   is  used    in  equity 

Am.  Dec.  222.    "  Such,"  says  Judge  pleading.    Latch  v.   Clinch,  136  Hi 

Comegys  in  a  recent  case,  "is  the  41U. 

law  as  laid  down  in  one  of  the  most  *  See  Stennel  v.   Hogg,  1   Saund. 

reliable  of  text-books  upon  any  sub-  223 ;  Mayor  of  Oxford  v.  Richardson, 

ject,  and  by  an  author  who  has  given  4  Term  R  437 
20 


302  KTTLES   WHICH    TEND   TO   PRODUCTION   OF   ISSUE.        [§  158. 

times  the  special  traverse,  without  an  inducement  of  new 
matter,  has  been  considered  not  only  as  unnecessary,  but  as  fre- 
quently improper.  As  the  taste  in  pleading  gradually  simpli- 
fied and  improved,  the  prolix  and  dilatory  effect  of  a  special 
traverse  brought  it  into  disfavor  with  the  courts ;  and  they 
began  not  only  to  enforce  the  doctrine  that  the  common  form 
might  allowably  be  substituted  in  cases  where  there  was  no 
inducement  of  new  matter,  but  often  intimated  their  prefer- 
ence of  that  form  to  the  other.  (Z)  Afterwards  they  appear 
to  have  gone  farther,  and  to  have  established  in  favor  of 
the  common  plan  of  traverse,  in  cases  where  there  is  no  al- 
legation of  new  matter,  the  following  rule  of  distinction: 
that  where  the  whole  substance  of  the  last  pleading  is  denied, 
the  conclusion  must  be  to  the  country  (or,  in  other  words,  the 
traverse  must  be  in  the  common  form) ;  but  where  one  of  sev- 
eral facts  only  is  the  subject  of  denial,  the  conclusion  may  be 
either  to  the  country  or  with  a  verification  (that  is,  the  trav- 
erse may  be  either  common  or  special),  at  the  option  of  the 
pleader,  (m)  Thus,  in  the  last  example,  the  special  traverse 
would  apparently  now  be  no  longer  allowable ;  because  the 
replication,  denying  the  right  of  way,  denies  the  whole  sub- 
stance of  the  plea.  It  is  not  easy  to  trace  either  the  orig- 
inal authority,  or  even  a  very  satisfactory  reason,  for  this 
distinction.  It  does  not  appear  to  coincide  with  the  practice 
at  a  former  period,  which  certainly  allowed  special  traverses, 
though  without  an  inducement  of  new  matter,  in  many  cases 
where  the  whole  substance  of  the  pleading  was  denied;  and 
its  true  origin  is  perhaps  to  be  referred  very  much  to  the  in- 
clination of  the  courts  to  discourage  this  formula.  From  the 
time  that  the  special  traverse  thus  fell  into  disrepute  it  has 
been  much  neglected,  even  in  cases  where  legally  allowable ; 
and  it  now  rarely  occurs  in  any  instance  where  there  is  no 
inducement  of  new  matter,  although  the  denial  relate  to  one 
out  of  several  facts  only.  This  change  of  practice,  however, 
is  very  recent,  having  been  effected  within  the  memory  of 
many  living  practitioners,  (n)  With  respect  to  the  other  kind 

(0  Robinson  v.  Bayley,  1  Burr.  820. 

(m)  See  1  Saund.  103,  a,  b;  Bac.  Abr.,  Pleas,  etc.,  p.  881,  In  notis;  Smith  T.  Dovers,  3 
Doug.  430. 

(n)  See  1  Chitty,  593,  and  1  Saund.  103  a. 


§  159.]        RULES    WHICH    TEND   TO   PRODUCTION    OF    ISSUE.  303 

of  special  traverse,  viz.,  that  which  is  attended  with  an  in- 
ducement of  new  matter,  as  illustrated  in  the  two  first  ex- 
amples, the  case  is  very  different.  This  was  originally  devised, 
as  has  been  shown,  for  certain  reasons  of  convenience  or  ne- 
cessity ;  and  those  reasons  still  occasionally  operate  the  same 
way.  However,  in  the  general  decline  of  the  method  of  spe- 
cial traverse,  there  is  felt  in  practice  a  great  disinelination  to 
adopt  in  any  case  whatever,  without  a  clear  reason  for  doing 
so,  this  discredited  form;  and  this  more  particularly  in  a  view 
to  the  disadvantages  with  which  it  is  attended.  These  disad- 
vantages consist  not  only  in  prolixity  and  delay,  but  in  the 
additional  inconvenience  that  the  inducement  tends  to  open 
the  real  nature  of  the  party's  case,  by  giving  notice  to  his 
adversary  of  the  precise  grounds  on  which  the  denial  pro- 
ceeds ;  and  thus  facilitates  to  the  latter  the  preparation  of  his 
proofs,  or  otherwise  guides  him  in  his  farther  proceedings. 
For  these  reasons  the  special  traverse  is  perhaps  daily  becom- 
ing more  rare;  and  even  though  the  case  be  such  as  would 
admit  of  an  inducement  of  new  matter  explanatory  of  the 
denial,  the  usual  course  is  to  omit  any  such  inducement  and 
to  make  the  denial  in  an  absolute  form,  with  a  tender  of 
issue ;  —  thus  substituting  the  common  for  the  special  formula. 
The  latter,  however,  appears  to  be  still  always  allowable 
when  the  case  is  such  as  admits  of  an  inducement  of  new  mat- 
ter, except  in  certain  instances  before  noticed,  to  which,  by 
the  course  of  precedent,  the  common  form  of  traverse  has 
been  always  exclusively  applied.  (0)  And  where  allowable  it 
should  still  be  occasionally  adopted,  in  view  to  the  various 
grounds  of  necessity  or  convenience  by  which  it  was  orig- 
inally suggested.  Accordingly  it  is  apprehended  that,  in  the 
two  first  examples,  a  special  traverse  would  be  as  proper  at 
the  present  day  as  it  was  at  the  period  when  the  precedents 
first  occurred. 

To  complete  our  view  of  the  nature  of  a  special  traverse,  it 
will  be  necessary  now  to  advert  to  certain  principles  laid  down 
in  the  books  relative  to  this  form. 

§  159.  Qualities  of  the  special  traverse. —  First,  it  is  a 
rule  that  the  inducement  should  be  such  as  in  itself  amounts  to 

(.ci)  Supra,  p.  288. 


304  KTTLES   WHICH   TEND   TO   PRODUCTION   OF   ISSUE.        [§  159. 

a  sufficient  answer  in  substance  to  the  last  pleading,  (p)  For 
(as  has  been  shown)  it  is  the  use  and  object  of  the  inducement 
to  give  an  explained  or  qualified  denial;  that  is,  to  state  such 
circumstances  as  tend  to  show  that  the  last  pleading  is  not 
true;  the  alsque  hoc  being  added  merely  to  put  that  denial 
in  a  positive  form  which  had  previously  been  made  in  an  in- 
direct one.  Now,  an  indirect  denial  amounts  in  substance  to 
an  answer;  and  it  follows,  therefore,  that  an  inducement,  if 
properly  framed,  must  always  in  itself  contain,  without  the 
aid  of  the  dbsque  hoc,  an  answer  in  substance  to  the  last  plead- 
ing. Thus,  in  the  first  example,  the  allegation  that  E.  B.  was 
seised  for  life,  and  that  that  estate  is  since  determined,  is  in 
itself,  in  substance,  a  sufficient  answer,  as  denying  by  impli- 
cation that  the  fee  descended  from  E.  B.  on  the  plaintiff. 
That  sort  of  special  traverse  containing  no  new  matter  in  the 
inducement,  as  in  the  last  example,  is  no  exception  to  this 
rule.  Thus,  to  say,  as  in  that  example,  that  the  defendant, 
of  his  own  wrong,  broke  the  close,  etc.,  is  of  itself  an  answer ; 
for  it  indirectly  denies  the  right  of  way. 

It  follows  from  the  same  consideration,  as  to  the  object  and 
use  of  a  special  traverse,  that  the  answer  given  by  the  induce- 
ment can  properly  be  of  no  other  nature  than  that  of  an  in- 
direct denial.  Accordingly,  we  find  it  decided,  in  the  first 
place,  that  it  must  not  consist  of  a  direct  denial.  Thus,  the 
plaintiff  being  bound  by  recognizance  to  pay  J.  Bush  300Z.  in 
six  years,  by  50£.  per  annum  at  a  certain  place,  alleged  that 
he  was  ready  every  day  at  that  place  to  have  paid  to  Bush 
one  of  the  said  instalments  of  50Z.,  but  that  Bush  was  not 
there  to  demand  and  receive  it.  To  this  the  defendant 
pleaded  that  J.  Bush  was  ready  at  the  place  to  receive  the 
50£.  dbsque  hoc,  that  the  plaintiff  was  there  ready  to  have  paid 
it;  on  which  the  plaintiff  demurred  on  the  ground  that  the 
inducement  alleging  Bush  to  have  been  at  the  place  ready  to 
receive,  contained  a  direct  denial  of  the  plaintiff's  precedent 
allegation  that  Bush  was  not  there,  and  should  therefore  have 
concluded  to  the  country  without  the  dbsque  hoc;  and  judg- 
ment was  given  accordingly  for  the  plaintiff,  (g)  Again,  as 

(p)  Bac.  Ab.  (H.)  1.;  Com.  Dig.,  Pleader  (G.  20);  Anon.,  3  Salic.  853;  Dike  v.  Ricks,  Cm  Car. 
886. 

(g)  Hughes  T.  Phelps,  Yelv.  38;  Cro.  Eliz.  765;  8.  0.,  and  see  86  Hen.  8, 15.  N.  B.—  In  the 
report  of  the  above  case  in  Cro.  Eliz.,  there  is  some  inaccuracy  in  the  manner  in  which  the* 


§  159.]        RULES   WHICH   TEND   TO   PRODUCTION    OF  ISSUE.  305 

the  answer  given  by  the  inducement  must  not  be  a  direct  de- 
nial, so  it  must  not  be  in  the  nature  of  a  confession  and  avoid- 
ance, (r)  Thus,  if  the  defendant  makes  title  as  assignee  of  a 
term  of  years  of  A.,  and  the  plaintiff,  in  answer  to  this,  claims 
under  a  prior  assignment  to  himself  from  A.  of  the  same 
term,  this  is  a  confession  and  avoidance;  for  it  admits  the  as- 
signment to  the  defendant,  but  avoids  its  effect  by  showing 
the  prior  assignment.  Therefore,  if  the  plaintiff  pleads  such 
assignment  to  himself  by  way  of  inducement,  adding,  under 
an  absque  hoc,  &  denial  that  A.  assigned  to  the  defendant,  this 
special  traverse  is  bad.  (s)  The  plaintiff  should  have  pleaded 
the  assignment  to  himself  as  in  confession  and  avoidance, 
without  the  traverse. 

Second.  Again,  it  is  a  rule  with  respect  to  special  traverses, 
that  the  opposite  party  has  no  right  to  traverse  the  induce- 
ment, (t)  or  (as  the  rule  is  more  commonly  expressed)  that 
there  must  be  no  traverse  upon  a  traverse,  (u}1  Thus,  in  the  first 
example,  if  the  replication,  instead  of  taking  issue  on  the  trav- 
erse (as  in  page  291).  had  traversed  the  inducement,  either  in 
the  common  or  the  special  form,  denying  that  E.  B.,  at  the 
time  of  making  the  indenture,  was  seised  in  his  demesne  as  of 
freehold  for  the  term  of  his  natural  life,  etc.,  such  replication 
would  have  been  bad  as  containing  a  traverse  upon  a  trav- 
erse. The  reason  of  this  rule  is  clear  and  satisfactory.  By 
the  first  traverse,  a  matter  is  denied  by  one  of  the  parties 
which  had  been  alleged  by  the  other,  and  which,  having  once 
alleged  it,  the  latter  is  bound  to  maintain  instead  of  prolong- 
ing the  series  of  the  pleading  and  retarding  the  issue  by  re- 
sorting to  a  new  traverse.  However,  this  rule  is  open  to  an 
important  exception,  viz. :  that  there  may  be  a  traverse  upon  a 
traverse  when  the  first  is  a  bad  one}"  (a?)  or  (in  other  words)  if 
the  denial  under  the  absque  hoc  of  the  first  traverse  be  insuffi- 
cient in  law,  it  may  be  passed  by  and  a  new  traverse  taken  on 

ground  of  the  decision  is  expressed,— the  words  non  obtulit  being  apparently  used  by  mis- 
take lorparatus  fuit. 

(r)  Com.  Dig.,  Pleader,  G.  3;  Lambert  v.  Cook,  Lord  Ray.  238;  Helier  v.  Whytier,  Cro. 
El.  650. 

(s)  Com.  Dig.,  Pleader,  G.  3;  Helier  T.  Whytier,  Cro.  EL  650. 

(<)  Anon.,  3  Salk.  353. 

(u)  Com.  Dig.,  Pleader,  G.  17;  Bac.  Ab.,  Pleas,  etc.,  H.  4;  The  King  v.  Bishop  of  Wor- 
cester, Vaughan,  62;  Digby  v.  Fitzharbert,  Hob.  104. 

(a:)  Com.  Dig.,  Pleader  (G.  18,  19) ;  Thrale  v.  Bishop  of  London,  1  H.  Bl.  376;  Richardson 
v.  Mayor  of  Oxford,  *  H.  Bl.  186;  King  yu,i  tarn  v.  Bolton,  Str.  116. 

,1  People  v.  Pullman  Co.,  175  111.  125. 


306  KTJLES   WHICH   TEND   TO   PKODUCTION    OF   ISSUE.        [§  160. 

the  inducement.  Thus,  in  an  action  of  prohibition,  the  plaint- 
iff declared  that  he  was  elected  and  admitted  one  of  the  com- 
mon council  of  the  city  of  London ;  but  that  the  defendants 
delivered  a  petition  to  the  court  of  common  council  com- 
plaining of  an  undue  election,  and  suggesting  that  they  them- 
selves were  chosen ;  whereas  (the  plaintiff  alleged)  the  common 
council  had  no  jurisdiction  to  examine  the  validity  of  such  an 
election,  but  the  same  belonged  to  the  court  of  the  mayor  and 
aldermen.  The  defendants  pleaded  that  the  common  council, 
time  out  of  mind,  had  authority  to  determine  the  election  of 
common  councilmen;  and  that  the  defendants  being  duly 
elected,  the  plaintiff  intruded  himself  into  the  office ;  where- 
upon the  defendants  delivered  their  petition  to  the  common 
council,  complaining  of  an  undue  election;  without  this,  that 
the  jurisdiction  to  examine  the  validity  of  such  election  be- 
longed to  the  court  of  the  mayor  and  aldermen.  The  plaintiff 
replied  by  traversing  the  inducement;  that  is,  he  pleaded 
that  the  common  council  had  not  authority  to  determine  the 
election  of  common  councilmen,  concluding  to  the  country. 
To  this  the  defendant  demurred,  and  the  court  adjudged  that 
the  first  traverse  was  bad,  because  the  question  in  this  pro- 
hibition was  not  whether  the  court  of  aldermen  had  jurisdic- 
tion, but  whether  the  common  council  had ;  and  that  the  first 
traverse  being  immaterial  the  second  was  well  taken,  (y) 

As  the  inducement  cannot,  when  the  denial  under  the 
dbsque  hoc  is  sufficient  in  law,  be  traversed,  so  for  the  same 
reasons  it  cannot  be  answered  by  a  pleading  in  confession  and 
avoidance.  But,  on  the  other  hand,  if  the  denial  be  insuffi- 
cient in  law,  the  opposite  party  has  then  a  right  to  plead  in 
confession  and  avoidance  of  the  inducement  as  well  as  to 
traverse  it ;  or  he  may  demur  to  the  whole  traverse  for  the 
insufficiency  of  the  denial. 

§  160.  The  issue  tendered  on  a  proper  special  traverse 
must  be  accepted. —  As  the  inducement  of  a  special  traverse, 
when  the  denial  under  the  dbsque  hoc  is  sufficient,  can  neither 
be  traversed  nor  confessed  and  avoided,  it  follows  that  there 
is,  in  that  case,  no  manner  of  pleading  to  the  inducement.1 
The  only  way,  therefore,  of  answering  a  good  special  traverse 
is  to  plead  to  the  absque  hoc,  which  is  done  by  tendering  issue 

(y)  Str.  116. 

i  People  v.  Pullman  Co.,  175  III  125. 


§   161.]         KULES   WHICH   TEND   TO   PEODUCTION    OF   ISSUE.  307 

on  such  denial  in  the  form  already  explained  at  page  291.1 
But  though  there  can  be  no  pleading  to  an  inducement  when 
the  denial  under  the  dbsque  hoc  is  sufficient,  yet  the  induce- 
ment may  be  open,  in  that  case,  to  exceptions  in  point  of  law. 
If  it  be  faulty  in  any  respect,  as  (for  example)  in  not  contain- 
ing a  sufficient  answer  in  substance,  or  in  giving  an  answer 
by  way  of  direct  denial,  or  by  way  of  confession  and  avoid- 
ance, the  opposite  party  may  demur  to  the  whole  traverse, 
though  the  absque  hoc  be  good,  for  this  insufficiency  in  the 
inducement,  (z) 

The  different  kinds  or  forms  of  traverse  having  been  now 
explained,  it  will  be  proper  next  to  advert  to  certain  princi- 
ples which  belong  to  traverses  in  general. 

§  161.  Traverses  in  general. —  The  first  of  these  that  may 
be  mentioned  is  that  it  is  the  nature  of  a  traverse  to  deny 
the  allegation  in  the  manner  and  form  in  which  it  is  made, 
and  therefore  to  put  the  opposite  party  to  prove  it  to  be 
true  in  manner  and  form  as  well  as  in  general  effect.  Ac- 
cordingly, it  has  been  shown  in  the  first  chaper,  (a)  that  he 
is  often  exposed  at  the  trial  to  the  danger  of  a  variance,  for 
a  slight  deviation  in  his  evidence  from  his  allegation.  This 
doctrine  of  variance  we  now  perceive  to  be  founded  on  the 
strict  quality  of  the  traverse  here  stated.  It  has  been  ex- 
plained, however,  in  the  same  place,  that  this  strictness  is  so 
far  modified  that  it  is,  in  general,  sufficient  to  prove  accurately 
the  substance  of  the  allegation,  and  that  a  deviation  in  point 
of  mere  form,  or  in  matter  quite  immaterial,  will  be  disre- 
garded. On  this  subject  of  variance,  or  the  degree  of  strict- 
ness with  which,  in  different  instances,  the  traverse  puts  the 
fact  in  issue,  there  are  a  great  number  of  adjudged  cases  in- 
volving much  nicety  of  distinction ;  but  it  does  not  belong  to 
this  work  to  enter  into  it  more  fully.  The  general  principle 
is  that  which  is  here  stated,  that  the  traverse  brings  the  fact 
into  question  according  to  the  manner  and  form  in  which  it 
•Is  alleged;  and  that  the  opposite  party  must  consequently 
prove  that,  in  all  substantial  points  at  least,  it  is  accurately 
true.  The  existence  of  this  principle  is  indicated  by  the 

(*)  Com.  Dig.,  Pleader  (G.  22);  Toden  v.  Haines.  Comb.  245. 
(a)  Supra,  p.  219. 

1  Prosser  v.  Woodward,  21  Wend.  205 ;  Thomas  v.  Black,  8  Houst  507. 


308  RULES   WHICH   TEND    TO   PRODUCTION   OF    ISSUE.        [§  162. 

•wording  of  a  traverse,  which,  when  in  the  negative,  gener- 
ally denies  the  last  pleading,  modo  et  forma,  "  in  manner  and 
form  as  alleged."  This  will  be  found  to  be  the  case  in  all 
the  preceding  examples,  except  in  the  general  issue  non  est 
factum,  and  the  replication  de  injuria,  which  are  almost  the 
only  negative  traverses  that  are  not  pleaded  modo  et  forma. 
These  words,  however,  though  usual,  are  said  to  be  in  no 
case  strictly  essential,  so  as  to  render  their  omission  cause  of 
demurrer.  (5)  * 

It  is  naturally  a  consequence  of  the  principle  here  men- 
tioned, that  great  accuracy  and  precision  in  adapting  the  alle- 
gation to  the  true  state  of  the  fact  are  observed  in  all  well- 
drawn  pleadings;  the  vigilance  of  the  pleader  being  always 
directed  to  these  qualities,  in  order  to  prevent  any  risk  of 
variance,  or  failure  of  proof  at  the  trial,  in  the  event  of  a  trav- 
erse by  the  opposite  party. 

§  162.  Again,  with  respect  to  all  traverses,  it  is  laid 
down  as  a  rule  that  a  traverse  must  not  be  taken  upon 
matter  of  law.  (G)  *  For  a  denial  of  the  law  involved  in  the 
precedent  pleading  is,  in  other  words,  an  exception  to  the 
sufficiency  of  that  pleading  in  point  of  law,  and  is  therefore 
within  the  scope  and  proper  province  of  a  demurrer,  and  not 
of  a  traverse.  Thus  where,  to  an  action  of  trespass  for  fishing 
in  the  plaintiff's  fishery,  the  defendant  pleaded  that  the  locus 
in  quo  was  an  arm  of  the  sea,  in  which  every  subject  of  the 

(6)  Com.  Dig.,  Pleader  (G.  1);  Nevil  and  Cook's  Case,  2  Leo.  5. 

(c)  1  Saund.  23;  Doct.  PL  351;  Kenicot  v.  Bogan,  Yelv.  200;  Priddle  &  Napper's  Case,  11 
Rep.  10  b;  Richardson  v.  Mayor  of  Oxford,  2  H.  Bl.  182. 

1  Bradley  v.  Barber,  65  111.  431;  Supervisors  v.  Decker,  30  Wis.  624; 
Parvis  v.  Truax,  7  Houst  574.  All  JEtn&  Powder  Co.  v.  Hildebrand,  137 
of  the  systems  of  pleading  require  Ind. 462;  Solomon v.Vernon, 31  Minn, 
substantially  the  same  thing,  viz. :  205;  Heath  v.  Frackleton,  20  Wis.  370, 
that  the  substantial  material  facts  91  Am.  Dec.  405;  Maynard  v.  Fire- 
shall  be  stated  on  either  side,  and  man's  Fund  Ins.  Co.,  34  CaL  48,  91 
that  the  party  shall  confine  his  proof  Am.  Dec.  672;  Terry  v.  Hunger,  121 
to  his  allegations.  The  code,  quite  N.  Y.  161. 

as  strictly  as  the  common-law  states,  2  Maness  v.  Henry,  96  Ala.  454;  Saf- 

requires  that  each  party  shall  pro-  ford  v.  Miller,  59  111.  205.    A  foreign 

ceed  upon  a  definite  theory  and  ad-  law  and  a  city  ordinance  are  facts 

here  to  it     He  is  not  allowed   to  to  be  pleaded.    Bowman  v.  St.  John, 

plead  one  case  and  prove  another.  43  111.  337;  Kanhouse  v.  Lexington, 

Fish  v.  Cleveland,  33  111.  238 ;  Ander-  12  111.  App.  318;  Wick  v.  Dawson,  43 

son  v.  Oscamp  (Ind.),  35  N.  E.  Rep.  707;  W.  Va,  43. 


§  162.]        RULES   WHICH   TEND   TO    PRODUCTION   OF    ISSUE.  309 

realm  had  the  liberty  and  privilege  of  free  fishing;  and  the 
plaintiff,  in  his  replication,  traversed  that  in  the  said  arm  of 
the  sea  every  subject  of  the  realm  had  the  liberty  and  privi- 
lege of  free  fishing,  this  was  held  to  be  a  traverse  of  a  mere 
inference  of  law,  and  therefore  bad.  (d)  Upon  the  same  prin- 
ciple, if  a  matter  be  alleged  in  pleading,  "by  reason  whereof" 
(virtute  cujus)  a  certain  legal  inference  is  drawn, —  as  that  the 
plaintiff  "  became  seized,"  etc.,  or  the  defendant  "  became 
liable,"  etc., —  this  virtute  cujus  is  not  traversable;  (e)  because, 
if  it  be  intended  to  question  the  facts  from  which  the  seisin 
or  liability  is  deduced,  the  traverse  should  be  applied  to  the 
facts  and  to  those  only ;  and,  if  the  legal  inference  be  doubted, 
the  course  is  to  demur.1  But,  on  the  other  hand,  where  an 
allegation  is  mixed  of  law  and  fact,  it  may  be  traversed.  (/")* 
For  example,  in  answer  to  an  allegation  that  a  man  was 
"  taken  out  of  prison  by  virtue  of  a  certain  writ  of  habeas 
corpus"  it  may  be  traversed  that  he  was  "taken  out  of  prison 
by  virtue  of  that  writ."  (g)  So  where  it  was  alleged  in  a  plea, 
that,  in  consequence  of  certain  circumstances  therein  set  forth, 
it  belonged  to  the  wardens  and  commonalty  of  a  certain  body 
corporate  to  present  to  a  certain  church,  being  vacant,  in  their 
turn,  being  the  second  turn;  and  this  was  answered  by  a 
special  traverse, —  without  this  that  it  belonged  to  the  said 
wardens  and  commonalty  to  present  to  the  said  church,  at 
the  second  turn,  when  the  same  became  vacant,  etc.,  in  man- 
ner and  form  as  alleged, —  the  court  held  the  traverse  good, 
as  not  applying  to  a  mere  matter  of  law,  "  but  to  a  matter  of 
law,  or  rather  right,  resulting  from  facts."  (A)  So  it  is  held, 
upon  the  same  principle,  that  traverse  may  be  taken  upon  an 

(d)  Richardson  y.  Mayor  of  Oxford,  2  H.  Bl.  182. 

(e)  Doct.  PL  851;  Priddle  &  Napper's  Case,  11  Rep.  10  b. 

(/)  1  Saund.  23,  note  5,  and  see  the  Instances  cited;  £ac.  Ab.,  Pleas,  etc.,  p.  880,  note  b 
C5th  ed.) ;  Beal  v.  Simpson,  1  Lord  Ray.  412;  Grocer's  Co.  v.  Archbishop  of  Canterbury, 
8  Wils.  214. 

(g)  Beale  v.  Simpson,  1  Lord  Ray.  412;  Treby,  C.  J.,  cont. 

(A)  Grocer'8  Co.  v.  Archbishop  of  Canterbury,  3  Wils.  214. 

1  State  T    School  Board,  76  Wis.       2  A  plea  -which  presents  a  mixed 

177,  7  L.  R  A.  888 ;  Bennett  v.  Me-  question  of  law  and  fact  is  bad,  be- 

Intire,  121  Ind.  231,  6  L.  R  A.  736 ;  cause  it  is  not  triable  by  jury.     1 

Ebersole  v.  First  Nat.  Bank,  36  111.  Chitty  PI.  (7th  Am.  ed.)  573 ;  Clay  F. 

App.  267;    Millard   v.    Baldwin,    3  &  M.  Ins.  Co.  v.  Wusterhausen,  75 

Gray,    484;  Kellogg    v.    Larkin,    8  III  285. 
Finn.  123. 


310  RULES   WHICH    TEND   TO   PRODUCTION    OF   ISSUE.        [§  163. 

allegation  that  a  certain  person  obtained  a  certain  church  by 
simony,  (i)1 

§  163.  It  is  also  a  rule  that  a  traverse  must  not  be  taken 
upon  matter  not  alleged.  (&) 2  The  meaning  of  this  rule 
will  be  sufficiently  explained  by  the  following  cases :  A  woman 
brought  an  action  of  debt  on  a  deed,  by  which  the  defendant 
obliged  himself  to  pay  her  200Z.  on  demand  if  he  did  not  take 
her  to  wife,  and  alleged  in  her  declaration  that  though  she 
had  tendered  herself  to  marry  the  defendant,  he  refused  and 
married  another  woman.  The  defendant  pleaded  that,  after 
making  the  deed,  he  offered  himself  to  marry  the  plaintiff,  and 
she  refused ;  dbsque  hoc,  "  that  he  refused  to  take  her  for  his 
wife  before  she  had  refused  to  take  him  for  her  husband."  The 
court  was  of  opinion  that  this  traverse  was  bad,  because  there 
had  been  no  allegation  in  the  declaration  "  that  the  defend- 
ant had  refused  before  the  plaintiff  had  refused,"  and  there- 
fore the  traverse  went  to  deny  what  the  plaintiff  had  not 
affirmed.  (F)  The  plea  in  this  case  ought  to  have  been  in  con- 
fession and  avoidance,  stating  merely  the  affirmative  matter, 
that  before  the  plaintiff  offered  the  defendant  offered ;  and 
that  the  plaintiff  had  refused  him,  and  omitting  the  absquehoc. 
Again,  in  an  action  of  debt  on  bond  against  the  defendant,  as 
executrix  of  J.  S.,  she  pleaded  in  abatement  that  J.  S.  died 
intestate,  and  that  administration  was  granted  to  her.  On  de- 
murrer it  was  objected  that  she  should  have  gone  on  to 
traverse  u  that  she  meddled  as  executrix  before  the  adminis- 
tration granted ; "  because,  if  she  so  meddled,  she  was  properly 
charged  as  executrix,  notwithstanding  the  subsequent  grant 
of  letters  of  administration.  But  the  court  held  the  plea  good 
in  that  respect.  And  Holt,  C.  J.,  said  "  that  if  the  defendant 
had  taken  such  traverse  it  had  made  her  plea  vitious ;  for  it  i& 
enough  for  her  to  show  that  the  plaintiff's  writ  ought  to  abate, 
which  she  has  done  in  showing  that  she  is  chargeable  only  by 

(O  Ibid. ;  Rast.  En t.  632  a. 

(fc)  1  Saund.  812  d,  note  4;  Doct  PL  868;  Crosse  v.  Hunt,  Garth.  09;  Powers  T.  Oook,  t 
Lord  Ray.  63;  1  Salk.  298. 
(I)  Crosse  T.  Hunt,  Cartk.  99. 

1  Duggan  v.  Wright,  157  Mass.  228.  the  facts  of  the  opposite  pleading 
See  a  discussion  of  the  subject  in  nor  confesses    and  avoids  them  is 
Lucas  v.  Mockels,  4  Bing.  729.  bad,    Landis  v.  People,  89  J1L  79. 

2  A  plea  which  neither  traverses 


§  164.]        RULES   WHICH   TEND   TO   PRODUCTION   OF   ISSUE.  311 

another  name.  Then,  as  to  the  traverse,  that  she  did  not  ad- 
minister as  executrix  before  the  letters  of  administration  were 
granted,  it  would  be  to  traverse  what  is  not  alleged  in  the 
plaintiff's  declaration ;  which  would  be  against  a  rule  of  law 
that  a  man  shall  never  traverse  that  which  the  plaintiff  has 
not  alleged  in  his  declaration."  (m)  There  is,  however,  the 
following  exception  to  this  rule,  viz.:  that  a  traverse  may  le 
taken  upon  matter  which,  though  not  expressly  alleged,  is  nec- 
essarily implied,  (n) x  Thus,  in  replevin  for  taking  cattle,  the 
defendant  made  cognizance  (<?)  that  A.  was  seised  of  the  close 
in  question,  and  by  his  command  the  defendant  took  the 
cattle  damage  feasant.  The  plaintiff  pleaded  in  bar  that  he 
himself  was  seised  of  one-third  part,  and  put  in  his  cattle, 
dbsque  hoc,  "  that  the  said  A.  was  sole  '  seised}  "  On  demurrer 
it  was  objected  that  this  traverse  was  taken  in  matter  not  al- 
leged,—  the  allegation  being  that  A.  was  seised,  not  that  A.  was 
sole  seised.  But  the  court  held  that  in  the  allegation  of  seisin 
that  of  sole  seisin  was  necessarily  implied,  and  that  whatever 
is  necessarily  implied  is  traversable  as  much  as  if  it  were  ex- 
pressed. Judgment  for  plaintiff,  (p)  The  court,  however, 
observed  that  in  this  case  the  plaintiff  was  not  obliged  to 
traverse  the  sole  seisin,  and  that  the  effect  of  merely  travers- 
ing the  seisin  modo  et  forma,  as  alleged,  would  have  been  the 
same  on  the  trial  as  that  of  traversing  the  sole  seisin. 

The  doctrine  of  traverses  being  now  discussed,  the  next 
subject  for  consideration  is  — 

§  164.  Pleadings  in  confession  and  avoidance. —  2.  The 
nature  and  properties  of  pleadings  in  confession  and  avoid- 
ance. 

First,  with  respect  to  their  division.    Of  pleas  in  confession 

(ire)  Powers  v.  Cook,  1  Lord  Ray.  63;  1  Salk.  298,  S.  C. 

(n)  1  Saund.  312  d,  n.  4;  Gilbert  v.  Parker,  2  Salk.  629;  6  Mod.  158,  S.  C. 

(o)  The  action  of  replevin  differs  from  other  actions  in  the  names  of  the  pleadings.  If 
the  defendant  pleads  some  matter  confessing  the  taking,  but  showing  lawful  title  or  ex- 
cuse, such  pleading  is  not  (as  it  would  be  in  other  actions)  called  a  plea  in  bar,  but  an 
avowry  or  a  cognizance;  the  former  term  applying  to  the  case  where  the  defendant  sets 
up  right  or  title  in  himself;  the  latter  being  used  when  he  alleges  the  right  or  title  to  be  in 
another  person,  by  whose  command  he  acted.  Com.  Dig.,  Pleader  (8  K.  13, 14).  The  answer 
to  the  avowry  or  cognizance  is  called  plea  in  bar;  and  then  follows  replication,  rejoinder, 
etc.,  the  ordinary  name  of  each  pleading  being  thus  postponed  by  one  step. 

(p)  Gilbert  v.  Parker,  2  Salk.  629;  6  Mod.  158,  S.  C. 

i  Marie  v.  Garrison,  83  N.  Y.  14 ;  burgh  Ry.  Co.  v.  Hebblewhite,  6  M. 
Spencer  v.  Otis,  96  III  570 ;  Edin-  &  W.  707. 


312  RULES    WHICH   TEND   TO   PRODUCTION   OF   ISSUE.        [§  164. 

and  avoidance,  some  are  distinguished  (in  reference  to  their 
subject-matter)  as  pleas  in  justification  or  excuse,  others  as  pleas 
in  discharge,  (q)  The  pleas  of  the  former  class  show  some 
justification  or  excuse  of  the  matter  charged  in  the  declara- 
tion; those  of  the  latter,  some  discharge  or  release  of  that 
matter.  The  effect  of  the  former,  therefore,  is  to  show  that 
the  plaintiff  never  had  any  right  of  action,  because  the  act 
charged  was  lawful;  the  effect  of  the  latter,  to  show  that 
though  he  had  once  a  right  of  action,  it  is  discharged  or  re- 
leased by  some  matter  subsequent.  Of  those  in  justification 
or  excuse  the  plea  of  son  assault  demesne  (r)  is  an  example ; 
of  those  in  discharge,  a  release,  (s)  This  division  applies  t@ 
pUas  only,  for  replications  and  other  subsequent  pleadings  in 
confession  and  avoidance  are  not  subject  to  any  such  classifi- 
cation. 

As  to  the  form  of  pleadings  in  confession  and  avoidance,  it 
will  be  sufficient  to  refer  the  reader  to  the  examples  in  the 
first  chapter,  (t)  and  to  observe  that,  in  common  with  all  plead- 
ings whatever  which  do  not  tender  issue,  they  always  con- 
clude with  a  verification  and  prayer  of  judgment,  (u) 

With  respect  to  the  quality  of  these  pleadings,  it  is  a  rule 
that  every  pleading  by  way  of  confession  and  avoidance  must 
give  color,  (x)  l  This  is  a  rule  which  it  is  very  essential  to 
understand  in  a  view  to  a  correct  apprehension  of  the  nature 
of  these  pleadings ;  yet  it  appears  to  have  been  not  hitherto 
adequately  explained  or  developed  in  the  books  of  the  science. 
Color  is  a  term  of  the  ancient  rhetoricians,  (y)  and  was 
adopted  at  an  early  period  into  the  language  of  pleading,  (z) 
As  a  term  of  pleading  it  signifies  an  apparent  or  prima  facie 
right ;  and  the  meaning  of  the  rule  that  every  pleading  in 

(«)  Com.  Dig.,  Pleader  (8  M.  12). 

(r)  See  this  plea,  supra,  p.  287. 

(s)  See  this  plea,  supra,  p.  19L 

(t)  Supra,  pp.  191-198. 

(u)  Vide  supra,  p.  285. 

(x)  See  Reg.  Plac.  804;  Hatton  v.  Morse,  8  Salk.  273;  Hallet  v.  Bryt,  5  Mod.  252;  Holler 
v.  Bush,  1  Salk.  894;  1  Chitty,  498. 

(y)  See  Appendix,  note  (51). 

(z)  It  occurs  at  least  as  early  as  the  reign  of  Edward  EH.  See  Tear  Books,  88  Ed.  nX 
28;  40  Ed.  HI.  23. 

longer  v.   Johnson,  2  Den.  96;  Brewer,  15  Pick.  217.     So  in  code 

Dibble  v.  Duncan,  2  McLean,  553;  pleading.    Pom.  Code  Rem.  (5th  ed.), 

Brown  v.  Artcher,  1  Hill,  266;  Van  §  687. 
Etten  v.  Hunt,  6  Hill,  311;  Thayer  v. 


§  164:.]        RULES   WHICH   TEND   TO   PRODUCTION   OF    ISSUE.  313 

confession  and  avoidance  must  give  color  is  that  it  must 
admit  an  apparent  right  in  the  opposite  party,  and  rely,  there- 
fore, on  some  new  matter  by  which  that  apparent  right  is 
defeated,  (a)  Thus,  in  the  example  formerly  given  of  a  plea 
of  release  to  an  action  for  breach  of  covenant,  (5)  the  tendency 
of  the  plea  is  to  admit  an  apparent  right  in  the  plaintiff,  viz., 
that  the  defendant  did,  as  alleged  in  the  declaration,  execute 
the  deed  and  break  the  covenant  therein  contained,  and  would, 
therefore,  prima  facie  be  chargeable  with  damages  on  that 
ground ;  but  shows  new  matter,  not  before  disclosed,  by  which 
that  apparent  right  is  done  away,  viz.,  that  the  plaintiff  exe- 
cuted to  him  a  release,  (c)  Again,  the  plaintiff  in  his  replica- 
tion impliedly  admits  that  the  defendant  has  prima  facie  a 
good  defense,  viz.,  that  such  release  was  executed  as  alleged 
in  the  plea;  and  that  the  defendant,  therefore,  would  be  ap- 
parently discharged,  but  relies  on  new  matter  by  which  the 
effect  of  the  plea  is  avoided,  viz.,  that  the  release  was  obtained 
by  duress.  The  plea  in  this  case,  therefore,  gives  color  to  the 
declaration,  and  the  replication  to  the  plea.  But  let  it  be 
supposed  that  the  plaintiff  had  replied  that  the  release  was 
executed  by  him,  but  to  another  person  and  not  to  the  defend- 
ant :  this  would  be  an  informal  replication  as  wanting  color, 
because,  if  the  release  were  not  to  the  defendant,  there  would 
not  exist  even  an  apparent  defense,  requiring  the  allegation 
of  new  matter  to  avoid  it ;  and  the  plea  might  be  sufficiently 
answered  by  a  traverse,  denying  that  the  deed  stated  in  the 
plea  is  the  deed  of  the  plaintiff,  (d)  So,  in  the  following  ex- 
ample, the  pleading  is  bad  for  want  of  color. 

PLEA. 
In  trespass  quare  clausum  fregit. 

And  for  a  farther  plea  in  this  behalf,  as  to  the  breaking  the 
said  close,  in  which,  etc.,  and  the  treading  down,  trampling 
upon,  consuming  and  spoiling  the  grass  and  herbage,  as  above 
supposed  to  have  been  done,  the  said  C.  D.  and  E.  F.,  by  leave 

(a)  See  Appendix,  note  (52). 

(6)  Supra,  p.  191. 

(c)  See  another  illustration,  Reg.  Plac.  304. 

I'd)  See  1  Sid.  450,  where  &plea  of  this  kind  was  held  to  be  bad.  The  objection,  indeed, 
to  that  case  took  a  somewhat  different  shape,  viz.,  that  the  plea  amounted  to  the  general 
issue.  But  this  objection,  as  will  be  explained  in  a  subsequent  part  of  the  work,  is  in 
substance  the  same  with  the  viant  of  color. 


314  EULES   •WHICH   TEND    TO   PRODUCTION   OF   ISSUE.        [§  164. 

of  the  court  here  for  this  purpose  first  had  and  obtained,  ac- 
cording to  the  form  of  the  statute  in  such  case  made  and 
provided,  say  that  the  said  A.  B.  ought  not  to  have  or  main- 
tain his  aforesaid  action  thereof  against  them,  because  they 
say  that  before  the  said  time  when,  etc.,  one  C.  D.,  the  father 
of  the  said  C.  D.,  the  now  defendant,  was  seized  in  his  de- 
mesne, as  of  fee,  of  and  in  the  said  close  in  which,  etc.  And 
being  so  seized,  the  said  C.  D.,  the  father,  before  the  said  time 

when,  etc.,  to  wit,  on  the day  of ,  in  the  year  of  our 

lord ,  gave  the  said  close,  etc.,  to  one  G.  D.,  son  and  heir 

apparent  to  the  said  C.  D.,  the  father,  to  have  and  to  hold  the 
same  to  himself,  the  said  G.  D.,  and  the  heirs  of  his  body  law- 
fully begotten ;  and  for  default  of  such  issue,  the  remainder 
thereof  to  the  said  0.  D.,  the  now  defendant,  younger  son  of 
the  said  C.  D.,  the  father,  and  the  heirs  of  the  body  of  him, 
the  said  C.  D.,  the  now  defendant,  lawfully  begotten ;  and  for 
default  of  such  issue,  the  remainder  thereof  to  the  right  heirs 
of  the  said  C.  D.,  the  father,  forever.  By  virtue  of  which  gift 
the  said  G.  D.  was  seized  of  and  in  the  said  close  in  which, 
etc.,  in  his  demesne,  as  of  fee  tail;  that  is  to  say,  to  him  and 
the  heirs  of  his  body  lawfully  begotten ;  the  remainder  thereof, 
for  default  of  such  issue,  to  the  said  C.  D.,  the  now  defend- 
ant, and  the  heirs  of  his  body  lawfully  begotten ;  the  remainder 
thereof  over,  for  default  of  such  issue,  to  the  right  heirs  of  the 
said  C.  D.,  the  father,  forever;  until  one  J.  S.,  before  the  said 
time  when,  etc.,  entered  into  and  upon  the  said  close,  in  which, 
«tc.,  upon  the  possession  of  the  said  G.  D.  thereof;  and  him, 
the  said  G.  D.,  unjustly  and  without  judgment  disseised ; 
whereby  the  said  J.  S.  was  seised  of  and  in  the  said  close,  in 
which,  etc.,  in  his  demesne,  as  of  fee,  by  disseisin,  etc.  And 
he  being  so  seised  thereof  by  disseisin,  the  said  G.  D.  made  his 
continual  claim  to  the  said  close,  in  which,  etc.,  upon  the  pos- 
session of  the  said  J.  S.  thereof,  sometimes  by  entering  thereon, 
and  sometimes  by  approaching  thereto  as  near  as  he,  the  said 
G.  D.,  dared,  so  as  to  avoid  bodily  hurt,  during  the  whole  life 
of  the  said  J.  S.,  and  within  a  day  and  year  of  the  death  of 
the  said  J.  S.  Which  said  J.  S.,  being  seised  in  form  afore- 
said of  the  said  close  in  which,  etc.,  before  the  said  time  when, 

etc.,  to  wit,  on  the day  of ,  in  the  year ,  at  - 

aforesaid,  in  the  county  aforesaid,  died  so  seised  of  his  said 
estate  therein.  After  whose  death,  the  said  close  in  which. 
«tc.,  descended  to  one  T.  S.,  as  son  and  heir  of  the  said  J.  S. 
Wherefore  the  said  T.  S..  before  the  said  time  when,  etc.,  en- 
tered into  the  said  close  in  which,  etc.,  and  was  seised  thereof 
in  his  demesne  as  of  fee;  upon  whose  possession  whereof,  the 
said  G.  D.  re-entered  in  and  upon  the  said  close  in  which,  etc., 
and  was  seised  thereof  in  his  demesne  as  of  fee  tail,  by  form 
of  the  gift  aforesaid,  as  in  his  former  estate.  And  being  so 
seised  thereof,  the  said  G.  D.  afterwards,  and  before  the  said 


§   1C4:.]        RULES   WHICH    TEND   TO   PRODUCTION   OF   ISSUE.  315 

time  when,  etc.,  to  wit,  on  the day  of ,  in  the  year 

,  at aforesaid,  in  the  county  aforesaid,  died  so  seised 

of  his  said  estate  thereof,  without  heir  of  his  body  la'wfully 
begotten.  After  whose  death,  and  before  the  said  time  when, 
etc.,  the  said  C.  D.,  the  now  defendant,  entered  into  and  upon 
the  said  close  in  which,  etc.,  as  into  his  said  remainder,  and 
was  thereof  seised  in  his  demesne  as  of  fee  tail,  according  to 
the  form  of  the  gift  aforesaid.  And  being  so  seised  thereof, 
the  said  C.  D.,  the  now  defendant,  before  the  said  time  when, 

etc.,  to  wit,  on  the day  of  • ,  in  the  year ,  at 

aforesaid,  in  the  count}'  aforesaid,  demised  the  said  close  in 
which,  etc.,  to  E.  F.,  the  other  of  the  said  defendants,  to  have 
and  to  hold  the  same  to  him  and  his  assigns,  from  the  feast 
of  the  annunciation  of  the  blessed  Virgin  Mary  then  last  past, 
until  the  end  and  term  of  twenty-one  years  thence  next  fol- 
lowing, and  fully  to  be  complete  and  ended.  By  virtue  of 
which  demise,  the  said  E.  F.,  before  the  said  time  when,  etc., 
entered  into  the  said  close  in  which,  etc.,  and  was  thereof  pos- 
sessed.* Wherefore  the  said  E.  F.,  in  his  own  right,  and  the 
said  C.  D.,  the  now  defendant,  as  the  servant  of  the  said  E.  F., 
and  by  his  command,  afterwards,  to  wit,  at  the  said  time 
when,  etc.,  broke  and  entered  the  said  close  in  which,  etc.,  and 
trod  down,  trampled  upon,  consumed  and  spoiled  the  grass 
and  herbage  there  growing  and  being,  as  it  was  lawful  for 
them  to  do  for  the  cause  aforesaid;  which  are  the  same  tres- 
passes in  the  introductory  part  of  this  plea  mentioned,  and 
whereof  the  said  A.  B.  hath  above  complained.  And  this  the 
said  defendants  are  ready  to  verify.  Wherefore  they  pray 
judgment  if  the  said  A.  B.  ought  to  have  or  maintain  his 
aforesaid  action  thereof  against  them,  etc. 

This  plea  (as  already  observed)  is  informal,  as  wanting 
color,  (e)  The  declaration  charges  the  defendants  with  break- 
ing and  entering  the  plaintiff's  close;  to  which  the  answer  (in 
substance)  is,  that  at  the  time  of  the  alleged  trespass  one  of 
the  defendants  was  seised  in  tail  of  the  said  close,  and  the 
other  defendant  in  possession  of  it,  as  his  lessee  for  years. 
But  if  this  be  so,  it  follows  that  the  plaintiff  has  not  even  a 
colorable  right  to  maintain  the  action  as  for  trespass  to  his 
close;  for  he  had  not  even  the  possession ;  and  if  he  had,  a 
mere  possession  without  some  show  of  title  is  insufficient  in 
law  to  give  such  colorable  right  against  the  true  owner.  In 
such  case  the  usual  and  regular  course  would  be  not  to  plead 
in  confession  and  avoidance,  bat  to  adopt  the  general  issue, 
not  guilty,  which  (as  we  have  seen)  (/)  puts  the  plaintiff's 

(.e)  See  Cro.  Jac.  229. 
(/)  Vide  nipra,  p.  181 


316  KULES    WHICH   TEND   TO   PRODUCTION   OF   ISSUE.        [§  164. 

lawful  possession  of  the  close  in  issue  as  well  as  the  mere  fact 
of  the  trespass. 

The  kind  of  color  to  which  these  observations  relate,  being 
a  latent  quality  naturally  inherent  in  the  structure  of  all  reg- 
ular pleadings  in  confession  and  avoidance,  has  been  called 
implied  color,1  to  distinguish  it  from  another  kind,  which  is 
in  some  instances  formally  inserted  in  the  pleading,  and  is 
therefore  known  by  the  name  of  express  color,  (g)  It  is  the 
latter  kind  to  which  the  technical  term  most  usually  applies; 
and  to  this  the  books  refer  when  color  is  mentioned  per  se,— 
without  the  distinction  between  express  and  implied.  Color 
in  this  sense  is  defined  to  be  "a  feigned  matter,  pleaded  by 
the  defendant  in  an  action  of  trespass,  from  which  the  plaintiff 
seems  to  have  a  good  cause  of  action,  whereas  he  has,  in  truth, 
only  an  appearance  or  color  of  cause."  (A)  This  is  one  of  the 
most  curious  subtleties  that  belong  to  the  science  of  pleading- 
and  though  now  rather  of  rare  occurrence,  yet,  as  it  is  still 
sometimes  practiced,  and  is,  besides,  illustrative  of  the  impor- 
tant doctrine  of  implied  color,  deserves  attention.  Its  nature 
and  use  may  be  thus  explained.  The  necessity  of  an  implied 
color  has  evidently  the  effect  of  obliging  the  pleader  to  trav- 
erse, in  many  instances  in  which  his  case,  when  fully  stated, 
does  not  turn  on  a  mere  denial  of  fact,  but  involves  some  con- 
sideration of  law.  In  the  example  first  above  given  of  want 
of  color,"  (i)  this  would  not  be  so ;  for  if  the  deed  of  release 
were  executed  not  to  the  defendant  but  to  a  different  person, 
this  of  course  amounts  to  no  more  than  a  mere  denial  that 
the  deed  as  alleged  in  the  plea  is  the  deed  of  the  plaintiff;  and 
no  question  of  law  can  be  said  to  arise  under  this  traverse. 
But  in  the  second  example,  (&)  let  it  be  supposed  that  the 
plaintiff  was  in  wrongful  possession  of  the  close  without  any 
farther  appearance  of  title  than  the  possession  itself,  at  the 
time  of  the  trespass  alleged,  and  that  the  defendants  entered 
upon  him  in  assertion  of  their  title ;  but,  being  unable  to  set 

(0)  Hatton  v.  Morse,  3  Salk.  273;  Beg.  Plac.  301;  Holt's  lost.  663. 
<70  Bac.  Ab.,  Trespass,  L,  4. 
(0  Supra,  p.  313. 
(fc)  Supra,  p.  313. 

1  The  plea  of  liberum  tenementum    Ft  Dearborn  Lodge  v.  Klein,  115  HL 
is  an   example    of    giving    implied    177. 
color.   See  for  citation  of  authorities, 


§  164.]        RULES   WHICH   TEND   TO   PKODUOTION   OF    ISSUE.  317 

forth  this  title  in  the  pleading  in  consequence  of  the  objection 
that  would  arise  from  want  of  color  (the  plaintiff's  mere  wrong- 
ful possession  being  insufficient  to  prevent  that  objection),  are 
driven  to  plead  the  general  issue,  not  guilty.  By  this  plea  an 
issue  is  produced  whether  the  defendants  are  guilty  or  not  of  the 
trespasses;  but  upon  the  trial  of  the  issue  it  will  be  found  that 
the  question  turns  entirely  upon  construction  of  law.  The 
defendants  say  they  are  not  guilty  of  the  trespasses,  because 
they  are  not  guilty  of  breaking  the  close  of  the  plaintiff  as 
alleged  in  the  declaration ;  and  that  they  are  not  guilty  of  break- 
ing the  close  of  the  plaintiff,  because  they  had  themselves  the 
property  in  that  close;  and  their  title  is  this:  that  the  father 
of  one  of  the  defendants,  being  seised  of  the  close  in  fee,  gave 
it  in  tail  to  his  eldest  son,  remainder  in  tail  to  one  of  the  de- 
fendants; that  the  eldest  son  was  disseised,  but  made  con- 
tinual claim  until  the  death  of  the  disseisor;  after  whose 
death,  the  descent  being  cast  upon  his  heir,  the  disseisee  en- 
tered upon  the  heir,  and  afterwards  died ;  when  the  remainder 
took  effect  in  the  said  defendant,  who  demised  to  the  other 
defendant.  Now,  this  title  involves  a  legal  question,  viz. : 
whether  continual  claim  will  not  preserve  the  right  of  entry 
in  the  disseisee,  notwithstanding  a  descent  cast  on  the  heir 
of  the  disseisor.  (I)  The  issue,  however,  is  merely  not  guilty, 
and  this  is  triable  by  jury ;  and  the  effect,  therefore,  would 
be,  that  a  jury  would  have  to  decide  this  question  of  law,  sub- 
ject to  the  direction  upon  it  which  they  would  receive  from 
the  judge  at  nisi  prius.  But,  let  it  be  supposed  that  the  de- 
fendants, in  a  view  to  the  more  satisfactory  decision  of  this 
question,  wish  to  bring  it  under  the  consideration  of  the  court 
in  bank,  rather  than  have  it  referred  to  a  jury.  If  they  have 
any  means  of  setting  forth  their  title  specially  in  their  plea, 
the  object  will  be  attained ;  for  then  the  plaintiff,  if.  disposed 
to  question  the  sufficiency  of  the  title,  may  demur  to  the  plea, 
and  thus  refer  the  legal  question  to  the  decision  of  the  judges. 
But  such  plea  (as  we  have  seen),  if  pleaded  simply  according 
to  the  state  of  fact,  would  be  informal  for  want  of  color; 
and  hence  arises  a  difficulty.  The  pleaders  of  former  days 
contrived  to  overcome  this  difficulty  in  the  following  singular 
manner.  In  such  a  case  as  that  supposed,  the  plea  wanting 

(J)  As  to  the  law  on  this  point,  see  Co.  Litt.  250,  1 ;  3  Bl.  Com.  316;  3  id.  175. 
21 


318  RULES   WHICH   TEND   TO   PRODUCTION   OF   ISSUE.        [§  164 

implied  color,  they  gave,  in  lieu  of  it,  an  express  one,  by  in- 
serting a  fictitious  allegation  of  some  colorable,  but  insuffi- 
cient, title  in  the  plaintiff;  which  they  at  the  same  time 
avoided  by  the  preferable  title  of  the  defendants.  Thus  they 
would  set  forth  the  title  as  in  the  example,  p.  313,  down  to 
the  mark  *,  and  would  then  proceed  to  insert  the  following 
fictitious  averment :  "  And  the  said  A.  B.,  claiming  the  said 
close,  etc.,  by  color  of  a  certain  charter  of  demise  to  him 
thereof  made  for  the  term  of  his  life  by  the  said  0.  D.,  the 
father,  long  before  the  said  gift  by  the  said  C.  D.,  the 
father,  to  the  said  G.  D.,  in  form  aforesaid,  made  (whereas 
nothing  of  or  in  the  said  close  in  which,  etc.,  ever  passed  into 
the  possession  of  the  said  A.  B.  by  virtue  of  that  charter)  be- 
fore the  said  time  when,  etc.,  entered  into  and  upon  the  said 
close  in  which,  etc.  And  thereupon  the  said  E.  F.,  in  his  own 
right,  and  the  said  C.  D.,  the  now  defendant,  as  the  servant 
of  the  said  E.  F.,  and  by  his  command,  afterwards,  to  wit,  at 
the  said  time  when,  etc.,  entered  into  and  upon  the  said  close 
in  which,  etc.,  in  and  upon  the  said  A.  B.'s  possession  thereof, 
and  trod  down,  trampled  upon,  consumed  and  spoiled,  etc." 
(to  the  end  of  the  plea),  (m)  This  was  called  giving  color; 
and  it  was  held  to  cure,  or  prevent,  the  objection  which  would 
otherwise  arise  from  the  want  of  implied  color;  and  the 
plea,  with  this  insertion,  was  considered  as  sufficiently  formal. 
For,  when  pleaded  in  that  form,  it  confesses  some  apparent 
title  in  the  plaintiff,  viz.,  a  charter  of  demise  for  the  term  of 
his  life,  by  virtue  of  which  he  entered  and  was  possessed. 
The  plea  admits,  therefore,  that  the  close  was,  in  some  sense, 
the  close  of  the  plaintiff,  but  at  the  same  time  it  avoids  this 
colorable  title  by  showing  that  of  the  defendants,  and  alleg- 
ing that  the  plaintiff's  title,  under  the  charter  of  demise,  was 
defective  in  point  of  law,  and  that  nothing  passed  under  that 
charter,  (ri) 

It  is  to  be  understood  that  when  color  was  thus  given,  the 
plaintiff  was  not  allowed  in  his  replication  to  traverse  the 

(rn)  This  plea,  with  the  color  here  given,  Is  copied  from  Brown's  Entries,  p.  343.  An- 
other example  will  be  found  supra,  p.  287.  See,  also,  8  Edw.  IV.  8,  for  example  of  color, 
and  an  illustrative  case  upon  the  subject. 

(n)  The  defect  in  the  title  given  by  this  color  is,  that  the  charter,  though  a  charter  of 
demise  for  life,  is  not  pleaded  as  a  feoff ment,  and  does  not  appear  to  have  been  accom- 
panied by  livery  of  seisin.  See  Doct.  Pldg.  73;  Leyfleld's  Case,  10  Rep.  89  b. 


§    16i.]      RULES   WHICH    TEND   TO   PRODUCTION   OF   ISSUE.  319 

fictitious  matter  suggested  by  way  of  color,  (<?)  for,  its  only 
object  being  to  prevent  a  difficulty  of  form,  such  traverse 
would  be  wholly  foreign  to  the  merits  of  the  cause  and  would 
only  serve  to  frustrate  the  fiction  which  the  law,  in  such  case, 
allows.  The  plaintiff  would  therefore  pass  over  the  color 
without  notice,  and  would  either  traverse  the  title  of  the  de- 
fendants if  he  meant  to  contest  its  truth  in  point  of  fact,  or 
•demur  to  it  if  he  meant  to  except  to  its  sufficiency  in  point  of 
law ;  and  thus  the  defendants  would  obtain  their  object  of 
bringing  any  legal  question  raised  upon  their  title  under  con- 
sideration of  the  court  and  withdrawing  it  from  the  jury. 

Such  is  still  the  course  of  proceeding  and  the  state  of  the  law 
on  this  subject  in  the  few  cases  in  which  express  color  is  now 
given ;  and  the  particular  example  above  adduced  is  one  that 
might  occur  in  the  practice  of  the  present  day.  (p) 

The  practice  of  giving  express  color  obtained  in  the  mixed 
actions  called  an  assise,  and  the  writ  of  entry  in  nature  of  an 
assise,  and  the  personal  action  of  trespass,  (q)  The  two  former 
kinds  of  proceeding  being  now  obsolete,  it  occurs  at  present 
in  the  action  of  trespass  only ;  nor  is  it  even  in  trespass  often 
found  to  be  expedient.  As  to  these  actions,  so  the  practice  of 
giving  express  color  seems  to  be  confined  to  pleas,  and  not  to 
extend  to  replications  or  other  subsequent  pleadings,  (r)  It 
is  also  to  be  understood  with  respect  to  giving  express  color, 
that  though,  originally,  various  suggestions  of  apparent  right 
might  be  adopted,  according  to  the  fancy  of  the  pleader,  («) 
and  though  the  same  latitude  is,  perhaps,  still  allowable,  yet 
in  practice  it  is  unusual  to  resort  to  any  except  certain  known 
fictions,  which  long  usage  has  applied  to  the  particular  case. 
Thus,  in  trespass  to  land,  the  color  universally  given  is  that  of 
a  defective  charter  of  demise,  as  in  the  above  example.1 

There  are  some  rules,  with  respect  to  express  color,  imme- 
diately resulting  from  the  nature  of  the  fiction  and  the  object 

(o)  1  Chitty,  501. 

(p)  See  Appendix,  note  (53). 

(3)  3  Reeves,  438;  Doct.  and  Stud.,  p.  271. 

(r)  1  Chitty,  601;  and  see  Taylor  v.  Eastwood,  1  East,  212;  3  Reeves,  441. 

(»)  3  Reeves,  441. 

!The  idea  of  giving  color  neces-  It  obtains,  therefore,  in  the  code 

sarily  pervades  every  system  ef  plead-  states.  See  Thayer  v.  Brown,  15  Pick, 

ing  winch  recognizes    the  idea  of  217;  Morgan  v.  Hawkeye  Ins.  Co.,  37 

pleading  in  confession  and  avoidance.  la.  859 ;  Pom.  Code  Rem.  (5th  ed.),  §  687. 


320  EXILES    WHICH   TEND   TO   PRODUCTION   OF   ISSUE.        [§  165 

for  which  it  is  adopted.  Thus  it  is  laid  down  that  it  must  con- 
sist of  such  matter  as,  if  it  were  effectual,  would  maintain  the 
nature  of  the  action,  (t)  For  example :  in  an  action  of  assise, 
where  the  demandant  complains  of  a  disseisin  of  his  freehold, 
the  tenant  should  not,  by  way  of  giving  color,  suggest  a  de- 
mise to  the  demandant  for  years,  because  this  would  not  give 
him  even  a  colorable  ground  to  maintain  an  assise.  (u)  On 
the  other  hand,  it  is  to  be  observed  that  the  right  suggested 
must  be  colorable  only ;  and  that  it  must  not  amount  to  a  real  or 
actual  right.  For  if  it  does,  then  the  plaintiff  would,  of  course, 
upon  the  defendant's  own  showing,  be  entitled  to  recover;  and 
the  plea  would  be  an  insufficient  answer.  For  example :  in  tres- 
pass for  taking  away  one  hundred  loads  of  wood,  if  the  defend- 
ant pleads  that  I.  S.  was  possessed  of  them  ut  de  lonis  propriis, 
and  the  plaintiff,  claiming  them  1y  color  of  a  deed  of  gift,  by  the 
said  1.  S.  afterwards  made,  took  them,  and  then  the  defendant 
re-took  them,  the  plea  is  bad ;  for,  if  the  plaintiff  took  posses- 
sion of  the  goods  under  a  deed  of  gift  from  the  lawful  owner, 
he  has  a  good  title  to  them,  and  ought  to  recover,  (a?)  So,  in 
the  example  of  color  before  given,  it  would  be  bad  pleading 
if,  instead  of  alleging  that  the  plaintiff  claimed  by  color  of  a 
certain  charter  of  demise  for  the  term  of  his  life,  etc.,  it  were 
alleged  that  he  claimed  by  color  of  a  certain  feoffment  for  the 
term  of  his  life;  for,  in  the  word  feoffment,  the  law  intends 
not  only  the  charter  of  demise,  but  the  livery  of  seisin  also ; 
and  the  title  allowed  to  the  plaintiff  would  therefore  not  be 
defective  or  colorable,  but  valid,  (y)  There  are  other  rules 
relative  to  express  color ;  but  as  they  seem,  on  examination, 
to  be  either  resolvable  into  the  same  principles  that  have  been 
already  considered,  or,  where  this  is  not  the  case,  to  be  ob- 
scure and  unimportant,  they  need  not  be  here  discussed. 

The  pleadings  by  way  of  traverse  and  those  by  way  of  con- 
fession and  avoidance  having  been  now  separately  considered, 
there  are  yet  to  be  noticed  — 

§  165.  3.  The  nature  and  properties  of  pleadings  in  gen- 
eral, without  reference  to  their  quality,  as  being  by  way  of 
traverse  or  confession  and  avoidance. 

(0  Bac.  Ab.,  Pleas,  etc.  a),  8;  Com.  Dig.,  Pleader  (3  M.  41). 

(u)  Keilw.  103. 

(x)  Radford  v.  Harbyn,  Cro.  Jac.  122. 

<*)  Doct.  PL  78. 


§  165.]        EULES   WHICH   TEND   TO   PRODUCTION   OF   ISSUE.  321 

First,  it  is  a  rule  that  every  pleading  must  "be  an  answer  to 
the  wJwle  of  what  is  adversely  alleged,  (s) ' 

Therefore,  in  an  action  of  trespass  for  breaking  a  close  and 
cutting  down  three  hundred  trees,  if  the  defendant  pleads,  as 
to  cutting  down  all  but  two  hundred  trees,  some  matter  of 
justification  or  title,  and  as  to  the  two  hundred  trees  says  noth- 
ing, the  plaintiff  is  entitled  to  sign  judgment  as  by  nil  dicit 
against  him  in  respect  of  the  two  hundred  trees,  and  to  demur 
or  reply  to  the  plea  as  to  the  remainder  of  the  trespasses. 
On  the  other  hand,  if  he  demurs  or  replies  to  the  plea  without 
signing  judgment  for  the  part  not  answered,  the  whole  action 
is  said  to  be  discontinued,  (a)  For  the  plea,  if  taken  by  the 
plaintiff  as  an  answer  to  the  whole  action,  it  being  in  fact  a 
partial  answer  only,  is  in  contemplation  of  law  a  mere  nullity; 
and  there  is  consequently  an  interruption  or  chasm  in  the 
pleading,  which  is  called  in  technical  phrase  a  discontinuance. 
And  such  discontinuance  will  amount  to  error  on  the  rec- 
ord. (5)  It  is  to  be  observed,  however,  that  as  to  the  plaintiff's 
course  of  proceeding  there  is  a  distinction  between  a  case  like 
this,  where  the  defendant  does  not  profess  to  answer  the  whole, 
and  a  case  where,  by  the  commencement  of  his  plea,  he  pro- 
fesses to  do  so,  but  in  fact  gives  a  defective  and  partial  an- 
swer applying  to  part  only.  The  latter  case  amounts  merely 
to  insufficient  pleading,  and  the  plaintiff's  course,  therefore,  is 
not  to  sign  judgment  for  the  part  defectively  answered,  but 
to  demur  to  the  whole  plea.  (<?)  It  is  also  to  be  observed  that 
where  the  part  of  the  pleading  to  which  no  answer  is  given 
is  immaterial,  or  such  as  requires  no  separate  or  specific  an- 
te) Com.  Dig.,  Pleader  (E.  1),  (F.  4);  1  Saund.  28,  n.  3;  Herlakendeu's  case,  4  Rep.  62  a. 
(a)  Com.  Dig.,  Pleader  (E.  1),  (F.  4);  1  Saund.  28,  n.  3;  Herlakendeu's  case,  4  Rep.  62  a. 
(6)  Cro.  Jac.  353.  Such  error  is  cured,  however,  after  verdict,  by  the  statute  of  Jeofails, 
32  H.  8,  ch.  30;  and  after  judgment  by  nil  dicit,  confession,  or  nan  turn  informatus,  by 
4  Ann.,  ch.  16. 

(c)  1  Saund.  28,  n.  3. 

1  Goodrich  v.  Reynolds,  31  111.  490,  (Hopkins  v.  Medley,  97  111.  402);  or 

83  Am.  Dec.  240;  Dickerson  v.  Hen-  several  facts  may  be  but  a  single 

dryx,  88  111.  68;  Wittick  v.  Traun,27  'point.     Clearwater  v.   Meredith,  1 

Ala.  562,  62  Am.  Dec.  778;  Bowlus  v.  Wall.  25.    A  single  paragraph  of  an 

Phoenix  Ins.  Co.,  133  Ind.  106,  20  L.  answer  cannot  be  both  a  denial  and 

R  A.  400.    This  may  be  done  by  an-  a  valid  plea  in  confession.     Bowlus 

swering  each  fact  or  singling  out  v.  Phoenix  Ins.  Co.,  133  Ind.  106,  20 

some  one  or  more  material  facts  L.  R.  A.  400. 


322  BULES   WHICH   TEND   TO   PRODUCTION   OF    ISSUE.        [§  165. 

swer, —  for  example,  if  it  be  mere  matter  of  aggravation^ — 
the  rule  does  not,  in  that  case,  apply,  (d) l 

Again,  it  is  a  rule  that  every  pleading  is  taken  to  confess 
such  traversalle  matters  alleged  on  the  other  side  as  it  does  not 
traverse,  (e) 2  Thus,  in  the  example  given  in  the  first  chap- 
ter (/")  of  an  action  on  an  indenture  of  covenant,  the  plea  of 
release,  as  it  does  not  traverse  the  indenture,  is  taken  to  admit 
its  execution ;  and  the  replication  of  duress,  on  the  same  prin- 
ciple, is  an  admission  of  the  execution  of  the  release.  So  the 
plea  traversing  the  want  of  repair  (g)  is  an  admission  of  the 
indenture  of  demise.  The  effect  of  such  admission  is  ex- 
tremely strong;  for,  first,  it  concludes  the  party,  even  though 
the  jury  should  improperly  go  out  of  the  issue,  and  find  the 
contrary  of  what  is  thus  confessed  on  the  record ;  (h)  and,  in 
the  next  place,  it  is  to  be  remarked  that  the  confession  oper- 
ates not  only  to  prevent  the  fact  from  being  afterwards 
brought  into  question  in  the  same  suit,3  but  is  equally  con- 

(d)  1  Saimcl.  28,  n.  3. 

(e)  Com.  Dig.,  Pleader  (G.  2);  Bac.  Ab.,  Pleas,  etc.,  pp.  332, 386  (5th  ed.);  Str.  297;  Hudson 
T.  Jones,  1  Salt.  91:  Nicholson  T.  Simpson,  11  Mod.  336;  Fort  356,  S.  C. 

(/)  Supra,  pp.  189, 197. 

(g)  Supra,  p.  188. 

(A)  Bac.  Ab.,  Pleas,  etc.,  p.  822  (5th  ed.);  2  Mod.  5. 

iThe  New  York  courts  early  de-  plea  answer  all  it  professes  to  as- 
parted  from  the  English  rule.  There  swer,  and  that  is  a  material  and  sev- 
it  was  laid  down  that :  1.  Every  plea  erable  part  of  the  count,  then  the 
in  bar  must  not  only  contain  a  good  plaintiff  must  reply  or  demur  to  the 
answer  so  far  as  it  professes  to  go,  plea,  and  as  to  the  part  of  his  count 
but  it  must  answer  the  whole  decla-  not  answered  he  must  enter  judg- 
ration  or  grant  to  which  it  is  pleaded,  ment  as  by  nil  dicit  Flemmingv. 
2.  If  the  whole  be  not  answered  the  Hoboken,  40  N.  J.  L.  270.  And  see 
plaintiff  may  demur,  and  the  action  Clarkson  v.  Lawson,  6  Bing.  587. 
will  not  be  thereby  discontinued,  but  2  Briggs  v.  Dorr,  19  John.  95 ;  Sim- 
the  plaintiff  will  be  entitled  to  judg-  mons  v.  Jenkins,  76  111.  479. 
ment.  Sterling  v.  Sherwood,  20  Johns.  In  equity  pleading  the  rule  is  said 
204 ;  Riggs  v.  Denniston,  3  Johns,  to  be,  What  is  not  admitted  must  be 
Cas.  198;  Hickok  v.  Coates,  2  Wend,  proved.  Hopkins  v.  Medley,  97  111.  402. 
419,  20  Am.  Dec.  632 ;  Loder  v.  But  in  Foley  v.  Hill,  3  Myl.  &  Cr.  475 
Phelps,  13  Wend.  46 ;  Underwood  v.  (1838).  Lord  Cottenham  held  "  that 
Campbell,  13  id.  78 ;  Etheridge  v.  what  you  neither  plead  to  nor  an- 
Osborn,  12  id.  399;  Root  v.  Wood-  swer  you  admit ;"  but  if  one  answers 
ruff,  6  Hill,  418 ;  Kueedler  v.  Stern-  to  a  point  or  proposition,  he  admits 
berg,  10  How.  Pr.  67.  In  New  Jer-  all  facts  alleged  by  his  opponent  on 
Bey,  on  the  other  hand,  it  has  been  that  point  which  he  does  not  ex- 
held  —  citing  the  text  —  that  if  the  pressly  deny.  In  such  case  there  may 


§  165.]        RULES   WHICH   TEND   TO   PRODUCTION   OF    ISSUE.  323 

elusive  as  to  the  truth  of  that  fact,  in  any  subsequent  action  be- 
tween the  same  parties.1  The  rule,  however  (it  will  be  observed), 
extends  only  to  such  matters  as  are  traversdble.  For  matters 
of  law,(i)  or  any  other  matters  which  are  not  fit  subjects  of 
traverse,  are  not  taken  to  be  admitted  by  pleading  over.  (&).2 

Protestation. —  It  is  this  rule  which  has  given  rise  to  the  prac- 
tice of  protestation  in  pleading.  (I)  When  the  pleader  passes 
over,  without  traverse,  any  traversable  fact  alleged,  and  at  the 
same  time  wishes  to  preserve  the  power  of  denying  it  in  an- 
other action,  he  makes,  collaterally  or  incidentally  to  his  main 
pleading,  a  declaration  importing  that  this  fact  is  untrue ;  and 
this  is  called  a, protestation;  and  it  has  the  effect  of  enabling  the 
party  to  dispute,  in  another  action,  the  fact  so  passed  over,  (m) 
Its  form  is  as  follows: s 

PLEA. 
In  assumpsit  for  goods  sold  and  delivered. 

And  the  said  C.  D.,  by ,  his  attorney,  comes  and 

defends  the  wrong  and  injury,  when,  etc.,  and  says  that  the 
said  A.  B.  ought  not  to  have  or  maintain  his  aforesaid  action 
against  him,  the  said  C.  D.,  because  he  says  that  after  the 
making  of  the  said  promises  and  undertakings,  and  before  the 
commencement  of  this  suit,  to  wit,  on  the day  of , 

(t)  Vide  supra,  p.  308. 

(fc)  10  Ed.  4, 12.    See  Appendix,  note  (54). 

(1)  Bac.  Ab.,  Pleas,  etc.,  p.  386,  note  (a),  5th  ed. 

(m)  Com.  Dig.,  Pleader  (NO;  Co.  Litt.  124 b;  2  Saund.  103  a,  n.  1. 

be  implied  admissions  in  chancery,  same  suit  upon  other  issues  is  decided 
precisely  as  at  law;  and  since  de-  differently.  That  it  may,  see  How- 
faults  operate  as  confessions  the  ard  v.  Glenn,  85  Ga.  238,  21  Am.  St. 
practical  difference  on  this  point  is  R.  156.  Contra,  Glenn  v.  Sumner, 
slight  See  Lube's  Eq.  PL,  Pt.  2,  ch.  132  U.  S.  156:  Edmunds  v.  Groves, 
1,  §S  92,  341-343;  McVey  v.  Quality,  2  M.  &  W.  642.  In  W.  C.  St.  Ry. 
97  III  93;  Jele  v.  Lemberger,  163  III  Co.  v.  Loewe,  58  III  App.  606,  the 
338;  Hart  v.  Ten  Eyck,  2  Johns.  Ch.  court  examined  abandoned  counts 
62.  If,  instead  of  answering,  defend-  and  considered  them  as  evidence, 
ant  pleads,  he  admits  facts  not  trav-  1  The  statement  of  the  text  is  open 
ersed,  precisely  as  at  law.  D.,  L.  &  N.  to  misconstruction,  and  may  mis- 
Ry.  Co.  v.  McCammon.  108  Mich.  368.  lead.  See  Res  Adjudicate. 

Untra versed  facts  may  be  read  to       2  Cf.  Dundee  Mortg.  Co.  v.  Nixon, 

jury,  and  are  conclusive.     Lettick  95  Ala.  318. 

v.  Honnold,  63  111.  335.    All  plead-        s  Dills  v.  Stobie,  81  111.  202;  1  Chit, 

ings   are  in  evidence  for   all  pur-  PI.  (7th  Am.  ed.)  649.    See  Anderson's 

poses.   Holmes  v.  Jones,  121  N.  Y.  461.  L.  Diet  tit  Protestation;   Bouv.  L. 

3  Whether  it  may  operate  in  the  Diet,  id.;  3  Cooley's  Blk.  (3d  ed.)  311. 


324:  KUlrES   WHICH   TEND   TO   PRODUCTION   OF   ISSUE.        [§  165. 

in  the  year ,  at  aforesaid,  in  the  county  aforesaid, 

he,  the  said  C.  D.,  gave  and  delivered  to  the  said  A.  B.  a  cer- 
tain pipe  of  wine,  in  full  satisfaction  and  discharge  of  the  said 
promises  and  undertakings,  and  of  all  the  sums  of  money  in 
the  said  declaration  mentioned ;  which  said  pipe  of  wine,  so 
given  in  full  satisfaction  and  discharge  as  aforesaid,  t'he  said 
A.  B.  then  and  there  accepted  in  full  satisfaction  and  dis- 
charge of  the  said  promises  and  undertakings,  and  of  all  the 
sums  of  money  in  the  said  declaration  mentioned.  And  this 
the  said  C.  D.  is  ready  to  verify.  Wherefore  he  prays  judg- 
ment if  the  said  A.  B.  ought  to  have  or  maintain  his  aforesaid 


action  against  him. 


REPLICATION. 


And  the  said  A.  B.  says  that  by  reason  of  anything  in  the 
said  plea  alleged  he  ought  not  to  be  barred  from  having  and 
maintaining  his  aforesaid  action  against  the  said  0.  D.,  be- 
cause, protesting  that  the  said  C.  D.  did  not  give  or  deliver  to 
Mm,  the  said  A.  B.,  the  said  pipe  of  wine,  as  the  said  C.  D. 
hath  above  in  pleading  alleged,  for  replication,  nevertheless,  in 
this  behalf,  the  said  A.  B.  says  that  he,  the  said  A.  B.,  did  not 
accept  the  said  pipe  of  wine  in  full  satisfaction  and  discharge 
of  the  said  promises  and  undertakings,  and  of  all  the  sums  of 
money  in  the  said  declaration  mentioned,  in  manner  and  form 
as  the  said  C.  D.  hath  above  alleged.  And  this  the  said  A.  B. 
prays  may  be  inquired  of  by  the  country,  (n) 

In  the  case  supposed  by  the  above  example  the  delivery  of 
the  pipe  of  wine  and  its  acceptance  are  two  different  alle- 
gations ;  and  in  traversing  the  latter,  it  may  be  thought  ad- 
visable not  to  admit  the  former,  because  the  delivery,  if  it 
were  not  accepted  in  satisfaction,  might  possibly  become  the 
subject  of  dispute  in  some  other  action  between  the  same 
parties.  In  order,  therefore,  not  to  be  concluded  by  the  im- 
plied admission  of  its  delivery,  which  would  otherwise  arise  by 
passing  it  over  without  traverse,  the  pleader  takes  the  deliv- 
ery by  protestation,  while  he  traverses  the  acceptance. 

Such  being  the  only  object  and  effect  of  the  protestation, 
it  will  be  understood  that  it  is  wholly  without  avail  in  the  ac- 
tion in  which  it  occurs;  and  that,  under  the  rule  already  laid 
down,  every  traversable  fact  not  traversed  is,  notwithstand- 
ing the  protestation,  to  be  taken  as  admitted  in  the  existing 
suit. 

It  is  also  given  as  a  rule,  that  if  upon  the  traverse  the  issue 

(»)  8  Went  136;  2  Chltty,  602. 


§  166.]        BULES   WHICH   TEND   TO   PRODUCTION   OF    ISSUE.  325 

is  found  against  the  party  protesting,  the  protestation  does 
not  avail ;  and  that  it  is  of  no  use  except  in  the  event  of  the 
issue  being  determined  in  his  favor;  with  this  exception,  how- 
ever, that  if  the  matter  taken  by  protestation  be  such  as  the 
pleader  could  not  have  taken  issue  upon,  the  protestation  in 
that  case  shall  avail,  even  though  the  issue  taken  were  de- 
cided against  him.  (o) 

A  protestation  ought  not  to  be  repugnant  to  the  pleading 
which  it  accompanies;  (p)  nor  ought  it  to  be  taken  on  such 
matter  as  the  pleading  itself  traverses,  (q)  The  rules,  however, 
with  respect  to  the  form  of  a  protestation  become  the  less 
material,  because  it  has  been  decided  that  neither  a  superflu- 
ous nor  repugnant  protestation  is  sufficient  ground  for  demur- 
rer; (r)  the  protestation  itself  having  in  view  another  suit 
only,  and  its  faults  of  form  being  therefore  immaterial  in  the 
present  action. 

It  has  been  already  observed  that  the  necessity  of  the  pro- 
testation arises  from  the  rule  "  that  every  traversable  fact  not 
traversed  is  confessed."  But  it  has  been  seen  that  an  answer 
in  fact  is  no  admission  of  the  sufficiency  in  point  of  law  of  the 
matter  answered,  (s)  It  follows,  therefore,  that  it  is  not  nec- 
essary, in  passing  over  an  insufficient  pleading  without  de- 
murrer and  answering  in  point  of  fact,  to  make  any  protes- 
tation of  the  insufficiency  in  law  of  such  pleading ;  for,  even 
without  the  protestation,  no  implied  admission  of  its  sufficiency 
arises.  In  practice,  however,  it  is  not  unusual  in  such  case 
to  make  a  protestation  of  insufficiency  in  law;  the  form  hav- 
ing apparently  been  adopted  by  analogy  to  the  proper  kind 
of  protestation,  viz.,  that  against  the  truth  of  &fact. 

§  166.  Exceptions  to  the  rule  under  consideration.1 —  Such 
are  the  doctrines  involved  in  the  general  rule  that  the  party 
must  either  demur  or  plead  oy  way  of  traverse  or  by  way  of  con- 
fession and  avoidance.  It  remains,  however,  to  notice  certain 
exceptions  to  which  that  branch  of  the  rule  is  subject,  which 
relates  to  pleading,  and  which  requires  a  party  to  plead  either 
by  way  of  traverse  or  by  way  of  confession  and  avoidance, 

(o)  2  Saund.  103  a,  n.  1;  q.  v.,  for  farther  explanation  on  this  subject. 

(p)Com.  Dig.,  Pleader  (N.);  2  Saund.,  ubi  supra. 

(q)  Com.  Dig.,  Pleader  (N.). 

(r)  Com.  Dig.  and  Saund.,  ubi  supra. 

(a)  Vide  supra,  p.  268. 

1  See  ante,  pp.  264,  265. 


326 


KULES   WHICH   TEND   TO   PRODUCTION   OF   ISSUE.        [§  166. 


First,  there  is  an  exception  in  the  case  of  dilatory  pleas. 
A  plea  of  this  kind  opposes  a  matter  of  form  to  the  declara- 
tion, but  (as  will  appear  on  examination  of  the  examples  in 
the  first  chapter)  does  not  tend  either  to  deny  or  to  confess  its 
allegations.  In  all  other  divisions  of  pleading,  however,  includ- 
ing not  only  pleas  in  bar,  but  all  replications  and  subsequent 
pleadings,  whether  following  on  pleas  in  bar  or  on  dilatory 
pleas,  the  rule  in  question  obtains.1 

There  is  another  exception  in  the  case  of  pleadings  in 
estoppel.2 

A  man  is  sometimes  precluded  in  law  from  alleging  or  de- 
nying a  fact  in  consequence  of  his  own  previous  act,  allega- 
tion or  denial  of.  a  contrary  tenor;  and  this  preclusion  is 
called  an  estoppel,  (t)  An  estoppel  may  arise  either  from  mat- 
ter of  record, —  from  the  deed  of  the  party, —  or  from  matter 
inpais'  that  is,  matter  of  fact.  Thus,  any  confession  or  ad- 
mission made  in  pleading  in  a  court  of  record,  whether  it  be 
express,  or  implied  from  pleading  over  without  a  traverse,  will 
forever  preclude  the  party  from  afterwards  contesting  the 
same  fact  in  any  subsequent  suit  with  his  adversary,  (u)  This 
is  an  estoppel  by  matter  of  record.  As  an  instance  of  an  es- 
toppel by  deed  may  be  mentioned  the  case  of  a  bond  reciting 
a  certain  fact.  The  party  executing  the  bond  will  be  per- 
eluded  from  afterwards  denying,  in  any  action  brought  upon 
that  instrument,  the  fact  so  recited,  (a?)  An  example  of  an 
estoppel  by  matter  inpais  occurs  when  one  man  has  accepted 
rent  of  another.  He  will  be  estopped  from  afterwards  deny- 
ing, in  any  action  with  that  person,  that  he  was  at  the  time 
of  such  acceptance  his  tenant,  (y). 

This  doctrine  of  law  gives  rise  to  a  kind  of  pleading  that  is 
neither  by  wa}'  of  traverse  nor  confession  and  avoidance,  viz.: 
a  pleading  that,  waiving  any  question  on  the  fact,  relies  merely 
on  the  estoppel;  and,  after  stating  the  previous  act,  allegation 
or  denial  of  the  opposite  party,  prays  judgment  if  he  shall  le 

(<)  "  An  estoppel  Is  when  a  man  is  concluded  by  his  own  act  or  acceptance  to  say  the 
truth."  Co.  Litt.  352  a. 

(M)  Com.  Dig.,  Estoppel  (A.  1). 

(a?)  5  Barn.  &  Aid.  682. 

(y)  Com.  Dig.,  Estoppel  (A.  3);  Co.  Litt.  352  a. 

1  Dana  v.  Bryant,  1  Gilm.  104.  »  Id.     See  Cromwell  v.  Sac  Co.,  94 

U.  S.  351. 


§  167-]        KULES   WHICH    TEND   TO   PRODUCTION   OF   ISSUE.  327 

received  or  admitted  to  aver  contrary  to  what  he  before  did 
or  said.  This  is  called  a  pleading  by  way  of  estoppel^  and  its 
form  is  as  follows : 

FLEA 

Of  Misnomer. 
In  abatement  of  the  bill. 

And  C.  D.,  against  whom  the  said  A.  B.  hath  exhibited 
his  bill  by  the  name  of  E.  D.,  in  his  own  person  comes,  and 

says  that  he  was  baptized  by  the  name  of  C.,  to  wit,  at 

aforesaid;  and  by  the  Christian  name  of  C.  hath  always,  since 
his  baptism  hitherto,  been  called  and  known,  (z)  Without 
this,  that  the  said  C.  D.  now  is,  or  at  the  time  of  exhibiting 
the  said  bill  was,  or  ever  before  had  been,  called  or  known  by 
the  Christian  name  of  E.,  as  by  the  said  bill  is  supposed.  And 
this  the  said  C.  D.  is  ready  to  verify.  "Wherefore  he  prays 
judgment  of  the  said  bill  and  that  ttie  same  may  be  quashed. 

KEPLICATION. 

And  the  said  A.  B.  saith  that  the  said  person  against  whom 
fee  hath  exhibited  his  said  bill  by  the  name  of  E.  D.  ought  not 
to  le  admitted  or  received  to  plead  the  plea  by  him  above 
pleaded  for  quashing  the  bill  of  him,  the  said  A.  B.,  because 
ne  saith  that  the  said  person  against  whom  he,  the  said  A.  B., 
hath  exhibited  his  said  bill  by  the  name  of  E.  D.,  heretofore, 

to  wit,  in  the  term  of last  past,  came  into  this  court  here, 

and  put  in  bail,  at  the  suit  of  the  said  A.  B.,  in  the  plea  afore- 
said, by  the  name  of  E.  D. ;  as  by  the  record  thereof  remain- 
ing in  the  said  court  of  our  said  lord  the  king,  before  the 
king  himself,  at  "Westminster  aforesaid,  more  fully  appears. 
And  this  he,  the  said  A.  B.,  is  ready  to  verify  by  that  record. 
Wherefore  he  prays  judgment  if  the  said  person  against  whom 
he  hath  exhibited  his  said  bill  by  the  name  of  E.  D.  ought  to 
l)e  admitted  or  received  to  his  said  plea  for  quashing  the  said 
bill,  contrary  to  his  own  acknowledgment  and  the  said  record, 
and  that  he  may  answer  over  to  the  said  bill,  (a) l 

§  167.  New  assignment. —  Another  exception  to  that  branch 
of  the  general  rule  which  requires  the  pleader  either  to  trav- 

(z)  It  Is  a  rule  with  respect  to  pleas  in  abatement  (to  be  hereafter  explained  in  its  proper 
piace)  that  they  must  give  the  plaintiff  a  better  writ  or  bill;  that  is,  afford  him  the  means 
of  correcting  the  mistake  of  form  to  which  the  plea  refers.  Accordingly  this  plea  of  mis- 
nomer, in  denying  that  the  defendant  is  called  by  the  name  of  E.,  states  his  true  name,  C.; 
and  the  insertion  of  this  matter,  by  way  of  introduction  to  the  denial,  occasions  the  neces- 
sity of  using  a  special  traverse.  Here,  therefore,  is  another  case,  in  addition  to  those  for- 
merly noticed,  in  which  it  becomes  proper  to  resort  to  that  formula.  Vide  supra,  p.  297. 

(a)  2  CMtty,  416,  590. 

1  See  further,  Hummer  T.  Woodburn,  4  Barn.  &  Ores.  635. 


328  BULES   WHICH   TEND   TO   PKODUCTIOX   OF   ISSUE.        [§  167. 

erse,  or  confess  and  avoid,  arises  in  the  case  of  what  is  called 
a  new  assignment.1 

It  has  been  seen  that  the  declarations  are  conceived  in  very 
general  terms,  a  quality  which  they  derive  from  their  adher- 
ence to  the  tenor  of  those  simple  and  abstract  formulae  —  the 
original  writs.  The  effect  of  this  is,  that  in  some  cases  the 
defendant  is  not  sufficiently  guided  by  the  declaration  to  the 
real  cause  of  complaint,  and  is  therefore  led  to  apply  his  an- 
swer to  a  different  matter  from  that  which  the  plaintiff  has 
in  view.  For  example,  it  may  happen  that  the  plaintiff  has 
been  twice  assaulted  by  the  defendant,  and  one  of  these  assaults 
may  have  been  justifiable,  being  committed  in  self-defense, 
while  the  other  may  have  been  committed  without  legal  ex- 
cuse. Supposing  the  plaintiff  to  bring  his  action  for  the  latter, 
it  will  be  found  by  referring  to  the  example  formerly  given,  (5) 
of  declaration  for  assault  and  battery,  that  the  statement  is 
so  general  as  not  to  indicate  to  which  of  the  two  assaults  the 
plaintiff  means  to  refer,  (c)  The  defendant  may  therefore 
suppose,  or  affect  to  suppose,  that  the  first  is  the  assault  in- 
tended, and  will  plead  son  assault  demesne,  as  in  the  example 
supra,  p.  287.  This  plea  the  plaintiff  cannot  safely  traverse, 
because,  as  an  assault  was  in  fact  committed  by  the  defend- 
ant, under  the  circumstances  of  excuse  here  alleged,  the  de- 
fendant would  have  a  right,  under  the  issue  joined  upon  such 
traverse,  to  prove  those  circumstances,  and  to  presume  that 
such  assault,  and  no  other,  is  the  cause  of  action.  And  it  is 
evidently  reasonable  that  he  should  have  this  right,  for,  if  the 
plaintiff  were,  at  the  trial  of  the  issue,  to  be  allowed  to  set  up 
a  different  assault,  the  defendant  might  suffer  by  a  mistake 
into  which  he  had  been  led  by  the  generality  of  the  plaintiff's 
declaration.  The  plaintiff,  therefore,  in  the  case  supposed, 
not  being  able  safely  to  traverse,  and  having  no  ground  either 
for  demurrer,  or  for  pleading  in  confession  and  avoidance,  has 
no  course  but  by  a  new  pleading  to  correct  the  mistake  oc- 
casioned by  the  generality  of  the  declaration,  and  to  declare 

(6)  Supra,  p.  160. 

(c)  As  for  the  day  and  place,  alleged  In  the  declaration,  It  will  be  shown  hereafter  that 
they  are  not  considered  as  material  to  be  proved  in  such  a  case,  and  are  consequently  al- 
leged without  much  regard  to  the  true  state  of  fact. 

1  Dana  v.  Bryant,  1  Gilm.  104. 


§  167.]        BULES   WHICH   TEND   TO   PRODUCTION   OF    ISSUE.  329 

that  he  brought  his  action,  not  for  the  first,  but  for  the  second 
assault;  and  this  is  called  a  new  assignment.  Its  form,  in  the 
example  here  chosen,  would  be  as  follows: 

REPLICATION 

To  the  Plea  of  Son  Assault  Demesne,  in  page  287. 
By  way  of  new  assignment. 

And  as  to  the  said  plea  of  the  said  C.  D.,  by  him  secondly 
above  pleaded,  as  to  the  said  several  trespasses  in  the  intro- 
ductory part  of  that  plea  mentioned,  and  therein  attempted 
to  be  justified,  the  said  A.  B.  says  that  by  reason  of  anything 
in  that  plea  alleged  he  ought  not  to  be  barred  from  having 
and  maintaining  his  aforesaid  action  thereof  against  the  said 
C.  D.,  because  he  says  that  he  brought  his  said  action,  not  for 
the  trespass  in  the  said  second  plea  acknowledged  to  have 
been  done,  but  for  that  the  said  C.  D.  heretofore,  to  wit,  on 

the day  of ,  in  the  year  of  our  Lord ,  with  force 

and  arms,  at  aforesaid,  in  the  county  aforesaid,  upon 

another  and  different  occasion,  and  for  another  and  different 
purpose  than  in  the  said  second  plea  mentioned,  made  another 
and  different  assault  upon  the  said  A.  B.  than  the  assault  in 
the  said  second  plea  mentioned,  and  then  and  there  beat, 
wounded  and  ill-treated  him  in  manner  and  form  as  the  said 
A.  B.  hath  above  thereof  complained;  which  said  trespasses 
above  newly  assigned  are  other  and  different  trespasses  than 
the  said  trespasses  in  the  said  second  plea  acknowledged  to 
have  been  done.  And  this  the  said  A.  B.  is  ready  to  verify. 
"Wherefore,  inasmuch  as  the  said  C.  D.  hath  not  answered  the 
said  trespass  above  newly  assigned,  he,  the  said  A.  B.,  prays 
judgment,  and  his  damages  by  him  sustained  by  reason  of  the 
committing  thereof,  to  be  adjudged  to  him,  etc.  (d) 

The  mistake  being  thus  set  right  by  the  new  assignment,  it 
remains  for  the  defendant  to  plead  such  matter  as  he  may 
have,  in  answer  to  the  assault  last  mentioned ;  the  first  being 
now  out  of  question. 

As  the  object  of  a  new  assignment  is  to  correct  a  mistake 
occasioned  by  the  generality  of  the  declaration,  it  always  oc- 
curs in  answer  to  &plea;  and  is  therefore  in  the  nature  of  a 
replication.  It  is  not  used  in  any  other  part  of  the  pleading, 
because  the  statements  subsequent  to  the  declaration  are  not 
in  their  nature  such,  when  properly  framed,  as  to  give  rise  to 
the  kind  of  mistake  which  requires  to  be  corrected  by  a  new 
assignment. 

(d)  9  Went.  323;  2  Chltty,  663. 


330 


EULES   WHICH   TEND   TO   PKODUCTION   OF    ISSUE.        [§  167. 


A  new  assignment  chiefly  occurs  in  an  action  of  trespass; 
but  it  is  sometimes  used  also  in  trespass  on  the  case;  and  seems 
to  be  generally  allowed  in  all  actions  in  which  the  form  of  dec- 
laration makes  the  reason  of  the  practice  equally  applicable.  (<?) l 

Several  new  assignments  may  occur  in  the  course  of  the 
same  series  of  pleading.  Thus,  in  the  above  example,  if  it  be 
supposed  that  three  different  assaults  had  been  committed, 
two  of  which  were  justifiable,  the  defendant  might  plead,  as 
above,  to  the  declaration,  and  then,  by  way  of  plea  to  the 
new  assignment,  he  might  again  justify,  in  the  same  manner, 
another  assault,  upon  which  it  would  become  necessary  for 
the  plaintiff  to  new-assign  a  third,  and  this  upon  the  same 
principle  by  which  the  first  new  assignment  was  required. 

(e)  1  Chitty,  602;  Vin  Ab.,  Novel  Assignment,  4,  5.   Vide  1  Bos.  &  PuL  41S. 
{/)  1  Chitty,  614;  1  SaundL  299  c. 


1  See  Batt  v.  Bradley,  Cro.  Jac.  121. 

'  Ordinarily  a  new  assignment  is 
necessary  or  proper  only  where  there 
are  two  acts  alleged ;  so  Chitty  says 
the  very  act  of  new  assigning  sup- 
poses two  acts.  1  Chitty,  PL  *628, 
note  r.  And  when  the  declaration 
counts  upon  a  single  act,  the  plaintiff 
cannot  traverse  and  new  assign  to 
a  plea  of  justification.  Thomas  v. 
Marsh,  5  C.  &  P.  596;  Cheasley  v. 
Barnes,  10  East,  73-81;  1  Arch. 
N.  P.  *528.  A  plaintiff  is  not  obliged 
to  new  assign  where  the  matter 
which  renders  the  defendant  liable 
is  part  of  the  acts  declared  upon ; 
«.  gr.,  when  a  battery  is  excessive,  in 
such  cases  the  replication  de  injuria 
is  the  proper  one.  Ayres  v.  Kelley, 
11  III  17;  Hannen  v.  Edes,  15  Mass. 
347;  Franks  v.  Morris,  10  East,  81. 
Indeed,  under  the  rule  that  a  new 
assignment  is  an  abandonment  of 
the  acts  justified,  such  a  proceeding 
would  be  fatal  The  acts  new  as- 
signed should  be  of  separate  acts, 
such  as  remaining  in  possession  too 
long,  or  acts  of  abuse  of  process,  or 
acts  not  covered  by  the  license. 


Ayres  v.  Kelley,  11  111.  17;  Dye  v. 
Letherdale,  3  Wils.  20;  Greene  v. 
Jones,  1  Saund.  299,  notes. 

But  when  there  is  but  one  act  of 
trespass  and  one  count  in  the  dec- 
laration, and  the  defendant  justifies 
the  apparent  wrong,  and  the  plaintiff 
really  relies  upon  an  abuse  of  the 
license  of  law,  he  should  new  assign 
the  matter  which  makes  the  defend- 
ant a  trespasser  ab  initio.  Lucas 
v.  Nockells,  2  Y.  &  J.  304,  220;  Han- 
nes  v.  Edes,  15  Mass.  347 ;  Taylor  v. 
Cole,  3  Tenn.  292;  McConnell  v. 
Kibbe,  33  III  175;  Hubbell  v. 
Wheeler,  2  Aik,  (Vt)  359.  Cf.  Ben- 
nett v.  Mclntyre,  121  Ind.  231.  For 
a  form  for  such  a  replication,  see 
Archbold,  N.  P.  (3d  Am.  ed),  p.  485. 

In  case  the  defendant  pleads  a 
license  of  law,  the  new  assignment 
may  be  of  matter  which  makes  him 
a  trespasser  ab  initio,  and  the  recov- 
ery on  the  new  assignment,  notwith- 
standing it  is  an  abandonment  of  the 
matter  justified,  may  be  for  the 
whole  damage ;  but  if  the  license  be 
merely  a  license  given  by  the  person, 
the  recovery  can  only  be  for  the  acts 


§  167.]        BULES   WHICH   TEND   TO   PRODUCTION   OF   ISSUE.  331 

A  new  assignment  is  said  to  be  in  the  nature  of  a  new  decla- 

O  ** 

ration,  (g)  It  seems,  however,  to  be  more  properly  considered 
as  a  repetition  of  the  declaration ;  (K)  differing  only  in  this, 
that  it  distinguishes  the  true  ground  of  complaint  as  being 
different  from  that  which  is  covered  by  the  plea.  Being  in 
the  nature  of  a  new  or  repeated  declaration,  it  is  consequently 
to  be  framed  with  as  much  certainty  or  specification  of  cir- 
cumstance as  the  declaration  itself,  (i)  In  some  cases,  indeed, 
it  should  be  even  more  particular,  so  as  to  avoid  the  necessity 
of  another  new  assignment.  Thus,  if  the  plaintiff  declare  in 
trespass  for  breaking  his  close  in  a  certain  parish,  without 
naming  or  farther  describing  the  close  (a  course  which  the 
forms  of  declaration  in  trespass  allow),  if  the  defendant  hap- 
pen to  have  any  freehold  in  the  same  parish,  he  may  plead 
that  the  close  in  question  was  his  own  freehold;  and  then, 
upon  the  principle  already  explained,  it  will  be  necessary  for 
the  plaintiff  to  new-assign,  alleging  that  he  brought  his  action 
in  respect  of  a  different  close  from  that  claimed  by  the  defend- 
ant as  his  freehold.  And  in  this  case  he  must,  in  his  new 
assignment,  either  give  his  close  its  name  or  otherwise  suffi- 
ciently describe  it,  (&)  though  such  name  or  description  was 
not  required  in  the  declaration. 

The  rule  under  consideration  and  its  exceptions  being  now 
discussed,  the  last  point  of  remark  relates  to  an  inference  or 
deduction  to  which  it  gives  rise. 

It  is  implied  in  this  rule  that  as  the  proceeding  must  either 

(?)  Bac.  Ab.,  Trespass  (I),  4,  2;  1  Saund.  299  0, 

(A)  Vide  1  Chitt.  602. 

(i)  Bac.  Ab.,  ttW  supra;  1  Chitty,  610. 

(fc)  Com.  Dig.,  Pleader  (3  M.  84).    See  an  example,  9  Went  187. 

new  assigned.    Hubbell  v.  Wheeler,  to  is  traversable,    Gould,  PL,  p.  867 ; 

2  Aik.  (Vt)  359.     C/.  Bennett  v.  Me-  1  Saund.  299,  n.    If  the  plaintiff  al- 

Intyre,  121  Ind.  231 ;  Six  Carpenters'  leges   trespass  on  divers  days,  etc., 

Case,  8  Coke,  146 ;  1  Sm.  Ld.  Cas.  (9th  the  defendant  may   narrow  it    by 

ed.)281.               .  alleging  in  his  plea  that  "  these  are 

If  there  are  two  counts  and  the  de-  the  same  supposed  trespasses."    See 

fendant  alleges  that  they  are  for  one  1  Arch.  N.  P.  593 ;  1  Saund.  298,  n.  2. 

and  the  same  supposed  trespass,  etc.,  The  principle  governing  the  rules 

the  plaintiff  may  traverse  this  alle-  as  to  new  assignments  are  applicable 

gation.    1  Chitty,  PL*414    The  alle-  to  the  code.    See  two  good  exam  pies: 

gation    that  the  trespass    new    as-  Campbell  v.  Bannister,  79  Ky.  205; 

signed  is  another  than  that  pleaded  Bennett  v.  Mclntyre,  121  Ind.  231. 


332  KULES   WHICH   TEND    TO   PRODUCTION   OF    ISSUE.        [§  168. 

be  by  demurrer,  traverse,  or  confession  and  avoidance,  so  any 
of  these  forms  of  opposition  to  the  last  pleading  is  in  itself 
sufficient. 

There  is,  however,  an  exception  to  this  in  a  case  which  the 
books  consider  as  anomalous  and  solitary.  It  is  as  follows : 
If,  in  debt  on  a  bond  conditioned  for  the  performance  of  an 
award,  the  defendant  pleads  that  no  award  was  made,  and  the 
plaintiff,  in  reply,  alleges  that  an  award  was  made,  setting  it 
forth,  it  is  held  that  he  must  also  proceed  to  state  a  breach  of 
the  award ;  and  that,  without  stating  such  breach,  the  repli- 
cation is  insufficient.  (I)  This,  as  has  been  observed,  is  an 
anomaly ;  for  as,  by  alleging  and  setting  forth  the  award,  he 
fully  traverses  the  plea  which  denied  the  existence  of  an  award, 
the  replication  would  seem,  according  to  the  general  rule 
under  consideration,  to  be  sufficient  without  the  specification 
of  any  breach.1 

RULE  IL 

§  168.  Upon  a  traverse  issue  must  be  tendered.1  — 

In  the  account  given  in  another  place  (ra)  of  traverses,  it 
was  shown  that,  with  the  exception  of  a  special  traverse,  the 
different  forms  all  involve  a  tender  of  issue.  The  rule  under 
consideration  prescribes  this  as  a  necessary  incident  to  them, 
and  establishes  it  as  a  general  principle,  that  wherever  a 
traverse  takes  place,  or,  in  other  words,  wherever  a  denial  or 
contradiction  of  fact  occurs  in  pleading,  issue  ought,  at  the 
same  time,  to  be  tendered  on  the  fact  denied.  -The  reason  is 
that  as,  by  the  contradiction,  it  sufficiently  appears  what  is 
the  issue  or  matter  in  dispute  between  the  parties,  it  is  time 

(I)  1  Saund.  103;  Meredith  v.  Alleyn,  1  Salk.  188;  Garth.  116,  S.  a  Though  this  is  con- 
sidered as  a  solitary  case  (vide  1  Salk.  188),  it  may  be  observed  that  another  analogous  one 
Is  to  be  found.  Gayle  v.  Betts,  1  Mod.  22T. 

(m)  Supra,  pp.  274.  et  seq. 

i  And  Chief  Justice   Holt   laid  it  mitted."    See  Meredith  v.  Alleyn,  1 

down  that  in  all  other  cases,  "if  a  Salk.  138. 

defendant  pleads  a  special    matter  J3  Cooley's  Black.  (3d  ed.)  318;  2 

that  admits  and  excuses  a  non- per-  .Bouvier's  Institutes,  §  2984;  Labagh 

formance,  the  plaintiff  need  only  an-  v.  Cantine,  13  John.  272.   A  tender  of 

swer  and  falsify  the  special  matter  issue  is  made  by  concluding  to  the 

alleged ;  for  he  that  excuses  a  non-  country.      Bindon    v.    Robinson,    1 

performance    supposes    it,   and  the  John.  516 ;  Labagh  v.  Cantine,  13  id. 

plaintiff  need  not  show  that  which  273. 
the  defendant  hath  supposed  and  ad- 


§  168.]        RULES   WHICH   TEND    TO    PRODUCTION   OF  ISSUE.  333 

that  the  pleading  should  now  close  and  that  the  method  of 
deciding  this  issue  should  be  adjusted. 

The  formula  of  tendering  the  issue  in  fact  vary,  of  course, 
according  to  the  mode  of  trial  proposed. 

The  tender  of  an  issue  to  be  tried  by  jury  is  by  a  formula 
called  the  conclusion  to  the  country.  This  conclusion  is  in  the 
following  words,  when  the  issue  is  tendered  by  the  defendant: 
"  And  of  this  the  said  C.  D.  puts  himself  upon  the  country." 
When  it  is  tendered  by  the  plaintiff,  the  formula  is  as  follows : 
"  And  this  the  said  A.  B.  prays  may  be  inquired  of  by  the 
country."  (n)  It  is  held,  however,  that  there  is  no  material 
difference  between  these  two  modes  of  expression,  and  that 
if  ponit  se  be  substituted  for  petit  quod  inquiratur,  or  vice 
versa,  the  mistake  is  unimportant,  (0)  Of  the  tender  of  issue, 
thus  concluding  to  the  country,  several  examples  have  already 
been  given  in  this  work,  (p)  and  to  these  it  will  now  be  suffi- 
cient to  refer.1 

The  form  of  the  issue,  or  mise,  when,  in  a  writ  of  right,  the 
tenant  puts  himself  upon  the  grand  assise,  is  as  follows : 

PLEA. 
In  a  writ  of  right,  (q) 

And  the  said  0.  D.,  by ,  his  attorney,  comes  and 

defends  (r)  the  right  of  the  said  A.  B.,  and  the  seisin  of  the 
said  G.  B.,  when,  etc.,  and  the  whole,  etc.,  and  whatsoever, 
etc.,  and  chiefly  of  the  tenements  aforesaid,  with  the  appur- 
tenances, as  of  fee  and  of  right,  etc. ;  and  puts  himself  upon 
the  grand  assise  of  our  lord  the  king,  and  prays  recognition 
to  be  made  whether  he  himself  has  greater  right  to  hold  the 
tenements  aforesaid,  with  the  appurtenances,  to  him  and  his 
heirs  as  tenants  thereof,  as  he  now  holds  them,  or  the  said 
A.  B.  to  have  the  said  tenements,  with  the  appurtenances,  as 
he  above  demands  them.  («) 

(n)  Heath's  Maxims,  68;  Weltale  v.  Glover,  10  Mod.  166;  Bract.  57;  By.  Plac.  Part.  148. 
(o)  Weltale  v.  Glover,  10  Mod.  166. 
(p)  Supra,  pp.  188,  196,  197. 
(q)  The  count  is  omitted. 

00  "  Defends  "  here  means  "  denies."    8  Bl.  Com.  297. 

(«)  Co.  Ent.  181  b;  3  BL  Com.,  Appendix,  No.  I,  sec.  6;  3  Chitty,  652.    See  Appendix, 
note  (55). 

1Bindon  v.  Robinson,  1  Johns.  516;  Labagh  v.  Cantine,  13  id.  270.    See 
Hartwell  v.  Hemmenway,  7  Pick.  117. 


334:  RULES   WHICH   TEND   TO   PRODUCTION   OF   ISSUE.        [§  168. 

The  form  of  tendering  an  issue  to  be  tried  ~by  record  is  this : 

PLEA 

Of  Judgment  Recovered. 
In  assumpsit. 

And  the  said  0.  D.,  by ,  his  attorney,  comes  and 

defends  the  wrong  and  injury  when,  etc.,  and  says  that  the 
said  A.  B.  ought  not  to  have  or  maintain  his  aforesaid  action 
against  him,  because  he  says  that  the  said  A.  B.  heretofore, 

to  wit,  in term,  in  the year  of  the  reign  of  our  lord 

the  now  king,  in  the  court  of  our  said  lord  the  king,  before 
the  king  himself,  the  same  court  then  and  still  being  holden 
at  Westminster,  in  the  county  of  Middlesex,  impleaded  the 
said  C.  D.  in  a  certain  plea  of  trespass  on  the  case,  on  prom- 
ises, to  the  damage  of  the  said  A.  B.  of pounds,  for  the 

not  performing  the  same  identical  promises  and  undertakings 
in  the  said  declaration  mentioned.  And  such  proceedings 
were  thereupon  had  in  the  same  court,  in  that  plea,  that  after- 
wards, to  wit,  in  that  same  term,  the  said  A.  B.,  by  the  con- 
sideration and  judgment  of  the  said  court,  recovered,  in  the 

said  plea,  against  the  said  0.  D., pounds  for  the  damages 

which  he  had  sustained,  as  well  by  reason  of  the  not  perform- 
ing of  the  same  promises  and  undertakings  in  the  said  declara- 
tion mentioned,  as  for  his  costs  and  charges  by  him  about  his 
suit  in  that  behalf  expended,  whereof  the  said  C.  D.  was  con- 
victed. As  by  the  record  and  proceedings  thereof  remaining 
in  the  said  court  of  our  said  lord  the  king,  before  the  king 
himself,  at  Westminster  aforesaid,  more  fully  appears:  Which 
said  judgment  still  remains  in  full  force  and  effect;  not  in  the 
least  reversed,  satisfied  or  made  void.  And  this  the  said  C.  D. 
is  ready  to  verify  by  the  said  record.  Wherefore  he  prays 
judgment  if  the  said  A.  B.  ought  to  have  or  maintain  his 
aforesaid  action  against  him. 

REPLICATION. 

And  the  said  A.  B.  says  that  by  reason  of  anything  in  the 
said  plea  alleged  he  ought  not  to  be  barred  from  having  and 
maintaining  his  aforesaid  action  against  the  said  C.  D.,  be- 
cause he  says  that  there  is  not  any  record  of  the  said  supposed 
recovery  remaining  in  the  said  court  of  our  said  lord  the 
king,  before  the  king  himself,  in  manner  and  form  as  the  said 
C.  D.  hath  above  in  his  said  plea  alleged.  And  this  he,  the 
said  A.  B.,  is  ready  to  verify,  when,  where  and  in  such  man- 
ner as  the  court  here  shall  order,  direct  or  appoint.  (£) 

(f)  2  Chitty,  438,  603. 


g  168.]        KULES   WHICH   TEND   TO   PRODUCTION   OF    ISSUE.  335 

The  tender  of  an  issue  to  be  decided  by  certificate,  witnesses 
or  inspection  is  by  the  following  formula:  "And  this  the  said 
A.  B.  [or,  C.  D.]  is  ready  to  verify,  when,  where  and  in  such 
manner  as  the  court  here  shall  order,  direct  or  appoint."  (u) 

The  form  of  tendering  an  issue  to  be  tried  by  wager  of  law 

is  as  follows: 

PLEA 

Of  Nil  Debet. 
In  debt  on  simple  contract. 

And  the  said  C.  D.,  in  his  own  proper  person,  comes  and  de- 
fends the  wrong  and  injury,  when,  etc.,  and  says  that  he  does 

not  owe  to  the  said  A.  B.  the  said  sum  of pounds,  above 

demanded,  or  any  part  thereof,  in  manner  and  form  as  the 
said  A.  B.  hath  above  complained  against  him.  And  this  he 
is  ready  to  defend  against  him  the  said  A.  B.,  and  his  suit,  as 
the  court  of  our  lord  the  king  here  shall  consider,  etc.  (x) 

With  respect  to  the  extraordinary  methods  of  trial,  their 
occurrence  is  too  rare  to  have  given  rise  to  any  illustration  of 
the  rule  in  question.  It  refers  chiefly  to  traverses  of  such 
matters  of  fact  as  are  triable  by  the  country;  and  therefore 
we  find  it  propounded  in  the  books  most  frequently  in  the 
following  form:  that,  upon  a  negative  and  affirmative,  the 
pleading  shall  conclude  to  the  country;  but  otherwise,  with  a 
verification,  (y)  * 

To  the  rule,  in  whatever  form  expressed,  there  is  the  fol- 
lowing exception:  that  when  new  matter  is  introduced  the 
pleading  should  always  conclude  with  a  verification,  (s) 2 

To  this  exception  belongs  the  case  formerly  noticed  of  spe- 
cial traverses.  These,  as  already  explained,  never  tender  issue 
but  always  conclude  with  a  verification ;  (a)  and  the  reason 
seems  to  be,  that  in  such  of  them  as  contain  new  matter  in 

(«)  See  Co.  Ent.  180  b;  East.  228;  Thome  v.  Rolfe,  Moore,  14;  BenL  86;  8  Chitty,  599. 
Quere,  however,  as  to  trial  by  inspection?  See  Booth,  147;  17  Ed.  EX,  pi.  116;  24  Ed.  HL, 
pi.  10. 

(x)  Co.  Ent.  119  a;  Mod.  Ent.  179;  LiL  Ent.  467;  8  Chitty,  497. 

(y)  Com.  Dig.,  Pleader  (E.  32);  1  Saund.  103,  n.  1. 

(z)  1  Saund.  103,  n.  1,  and  the  authorities  there  cited;  8  Burr.  773;  Vent.  121;  Vere  v. 
Smith,  2  Lev.  5;  Sayre  v.  Minns,  Cowp.  575. 

(a)  Vide  supra,  p.  292. 

1  Snyder  v.  Croy,  2  Johns.  428 ;  91 ;  Morris  v.  Wadsworth,  11  Wend. 

Gazley  v.  Price,  16  id.  267 ;  Terboss  100 ;  Henderson  v.  Withy,  2  Term 

v.  Williams,  5  Cow.  407.  R  576 

'Service  v.  Heermance,  1  Johns. 


336  RULES   WHICH   TEND   TO   PRODUCTION   OF    ISSUE.        [§  168. 

the  inducement,  the  introduction  of  that  new  matter  will 
give  the  opposite  party  a  right  to  be  heard  in  answer  to  it,  if 
the  absque  hoc  be  immaterial ;  and  consequently  makes  a  ten- 
der of  issue  premature.  And  on  the  other  hand,  with  respect 
to  such  special  traverses  as  contain  no  new  matter  in  the  in- 
ducement, they  seem  in  this  respect  to  follow  the  analogy  of 
those  first  mentioned,  though  they  are  not  within  the  same 
reason. 

Not  only  in  the  case  of  special  traverses,  but  in  other  in- 
stances also  to  which  that  form  does  not  apply,  a  traverse 
may  sometimes  involve  the  allegation  of  new  matter;  and  in 
all  such  instances,  as  well  as  upon  a  special  traverse,  and  for 
a  similar  reason,  the  conclusion  must  be  with  a  verification, 
and  not  to  the  country.  Of  this  the  following  is  an  example: 
The  plaintiff  declared  in  debt  on  a  bond  conditioned  for  the 
performance  of  certain  covenants  by  the  defendant  in  his  ca- 
pacity of  clerk  to  the  plaintiff,  one  of  which  covenants  was  to 
account  for  all  the  money  that  he  should  receive.  The  de- 
fendant pleaded  performance.  The  plaintiff  replied  that  on 
such  a  day  such  a  sum  came  to  his  hands  which  he  had  not 
accounted  for.  The  defendant  rejoined  that  he  did  account, 
and  in  the  following  manner:  That  thieves  broke  into  the 
counting-house  and  stole  the  money,  and  that  he  acquainted 
the  plaintiff  of  the  fact;  and  he  concluded  with  a  verification. 
The  court  held  that,  though  there  was  an  express  affirmative 
that  he  did  account,  in  contradiction  to  the  statement  in  the 
replication  that  he  did  not  account,  yet  that  the  conclusion 
with  a  verification  was  right ;  for  that  new  matter  being  alleged 
in  the  rejoinder,  the  plaintiff  ought  to  have  liberty  to  come 
in  with  a  surrejoinder  and  answer  it  by  traversing  the  rob- 
bery. (6) 

The  application,  however,  to  particular  cases,  of  this  ex- 
ception as  to  the  introduction  of  new  matter,  is  occasionally 
nice  and  doubtful;  and  it  becomes  difficult  sometimes  to  say 
whether  there  is  any  such  introduction  of  new  matter  as  to 
make  the  tender  of  the  issue  improper.  Thus,  in  debt  on  a 
bond  conditioned  to  render  a  full  account  to  the  plaintiff  of 
all  such  sums  of  money  and  goods  as  were  belonging  to  W.  N. 
at  the  time  of  his  death,  the  defendant  pleaded  that  no  goods 

(6)  Vere  v.  Smith,  2  Lev.  5;  Vent  121. 


§  169.]         RULES   WHICH    TEND   TO    PRODUCTION    OF    ISSUE.  337 

or  sums  of  money  came  to  his  hands.  The  plaintiff  replied 
that  a  silver  bowl  which  belonged  to  the  said  "W.  N".  at  the 
time  of  his  death  came  to  the  hands  of  the  defendant,  viz.,  on 
such  a  day  and  year;  "and  this  he  is  ready  to  verify,"  etc. 
On  demurrer  it  was  contended  that  the  replication  ought  to 
have  concluded  to  the  country,  there  being  a  complete  nega- 
tive and  affirmative;  but  the  court  thought  it  well  concluded, 
as  new  matter  was  introduced.  However,  the  learned  judge 
who  reports  the  case  thinks  it  clear  that  the  replication  was 
bad;  and  Mr.  Sergeant  "Williams  expresses  the  same  opinion, 
holding  that  there  was  no  introduction  of  new  matter  such  as 
to  render  a  verification  proper,  (c) 

RuiiE  m. 

§  169.  Issue,  when  well  tendered,  mnst  be  accepted.  (<Z)J — 

If  issue  be  well  tendered,  both  in  point  of  substance  and  in 
point  of  form,  nothing  remains  for  the  opposite  party  but  to 
accept  or  join  in  it ;  and  he  can  neither  demur,  traverse,  nor 
plead  in  confession  and  avoidance. 

The  acceptance  of  the  issue  in  case  of  a  conclusion  to  the 
country,  i.  e.,  of  trial  by  jury,  may  (as  explained  in  the  first 
chapter)  (e)  either  be  added  in  making  up  the  issue  or  paper- 
book,  or  may  be  filed  or  delivered  before  that  transcript  is 
made  up.  It  is  in  both  cases  called  the  similiter,  and  in  the 
latter  case  a  special  similiter.  The  form  of  a  special  similiter 
is  thus:  "  And  the  said  A.  B."  [or,  "  C.  D."]  "  as  to  the  plea" 
[or,  "  replication,"  etc.]  "  of  the  said  C.  D."  [or,  "  A.  B."], 
u  whereof  he  hath  put  himself  upon  the  country  "  [or,  "  whereof 
he  hath  prayed  it  may  be  inquired  by  the  country"],  "doth 
the  like."  The  similiter,  when  added  in  making  up  the  issue  or 
paper-book,  is  simply  this :  "  And  the  said  A.  B."  [or,  "  C.  D."] 
"  doth  the  like." 

As  the  party  has  no  option  in  accepting  the  issue  when  well 

(c)  Hayman  v.  Gerrard,  1  Saund.  102.    But  see  Cornwallis  v.  Savery,  Burr.  772,  which 
seems  to  coincide  in  principle  with  the  case  in  Saunders.    See,  also,  Sayre  v.  Minns,  Cowp. 
576. 

(d)  Bac.  Ab.,  Pleas,  etc.,  p.  863  (5th  ed).;  Digby  v.  Fitzharbert,  Hob.  104.    "In  all  plead- 
ings wherever  a  traverse  was  first  properly  taken,  the  issue  closed."    Gilb.  C.  P.  66. 

(e)  Supra,  p.  309. 

1  That  is,  there  cannot  be  a  trav-  v.  Winship,  16  Pick.  291 ;  Hapgood 
erse  upon  a  material  traverse.  Daws  v.  Hough  ton,  8  id.  450. 


338 


EULES   WHICH   TEND   TO   PRODUCTION    OF   ISSUE.         [§  160. 


tendered,  and  as  the  similiter  may  in  that  case  be  added  for 
him,  the  acceptance  of  the  issue  when  well  tendered  may  be 
considered  as  a  mere  matter  of  form.1  It  is  a  form,  however, 
which  should  be  invariably  observed,  and  its  omission  has  some- 
times formed  a  ground  of  successful  objection,  even  after 
verdict.  (/")* 

The  rule  expresses  that  the  issue  must  be  accepted  only 
when  it  is  well  tendered.  For  if  the  opposite  party  thinks 
the  traverse  bad  in  substance  or  in  form,  or  objects  to  the 
mode  of  trial  proposed,  in  either  case  he  is  not  obliged  to  add 
the  similiter,  but  may  demur;  and,  if  it  has  been  added  for 
him,  may  strike  it  out  and  demur,  (g) 

The  similiter,  therefore,  serves  to  mark  the  acceptance  both 
of  the  question  itself  and  the  mode  of  trial  proposed.  It 
seems  originally,  however,  to  have  been  introduced  in  a  view 
to  the  latter  point  only.  The  resort  to  a  jury,  in  ancient 
times,  could  in  general  be  had  only  by  the  mutual  consent  of 
each  party.  (A)  It  appears  to  have  been  with  the  object  of 
expressing  such  consent  that  the  similiter  was  in  those  times 
added  in  drawing  up  the  record,  and  from  the  record  it  after- 
wards found  its  way  into  the  written  pleadings.  Accordingly 
no  similiter  or  other  acceptance  of  issue  is  necessary,  when 
recourse  is  had  to  any  of  the  other  modes  of  trial ;  and  the  rule 
in  question  does  not  extend  to  these.  Thus,  when  issue  is  ten- 
dered to  be  tried  by  the  record,  as  in  the  above  example, 
p.  334,  the  plaintiff  is  entitled  to  consider  the  issue  as  com- 
plete upon  such  tender,  (i)  and  no  acceptance  of  it  on  the 
other  side  is  essential. 

The  rule  in  question  extends  to  an  issue  in  law  as  well  as  an 

(/)  Griffith  T.  Crockford,  8  Brod.  &  Bing.  1.  But  see  8  Saund.  819,  n.  8,  and  Tidd,  947 
(6th  ed.). 

(g)  Vide  supra,  p.  211. 

•  (h)  See  Appendix,  note  (34).  It  may  be  observed  that  this  is  still  indicated  by  the  form  of 
the  venire  facias,  which  contains  the  formal  clause,  "  because  as  well  the  said  C.  D.  as  the 
said  A.  B.,"  etc.,  "  have  put  themselves  upon  that  jury."  Vide  tupra,  p.  216. 

(0  Tiffany  v.  Johnson,  8  Bos.  &  PuL  302.  And  see  Booth,  96,  as  to  the  mise  on  a  writ 
of  right. 

1  It  may  be  added  by  either  party,    issue,    Gillespie  v.  Smith,  29  HL  473 ; 
Stumps  v.  Kelley,  22  III  140 ;  Davis  v.    Hazen  v.  Pierson,  83  id.  241. 
Ransom,  26  id  100.     It  is  not  neces-        2  McCully  v.   Silverburgh,   18    III 
sary  to  a  negative  plea,  e.  g.,  general    306.     C/.   Davis  v.  Ransom,  supra; 

Walker  v.  Armour,  23  111.  659. 


§  169.]        EULES   WIIICH   TEND   TO   PRODUCTION   OF    ISSUE.  339 

issue  mfact; l  for  by  analogy  (as  it  would  seem)  to  the  simili- 
ter,  the  party  whose  pleading  is  opposed  by  a  demurrer  is  re- 
quired formally  to  accept  the  issue  in  law  which  it  tenders  by 
the  formula  called  a.  joinder  in  demurrer,  of  which  an  example 
was  given  in  the  first  chapter.  (&)  However,  it  differs  in  this 
respect  from  the  similiter,  that  whether  the  issue  in  law  be  well 
or  ill  tendered,  that  is,  whether  the  demurrer  be  in  proper 
form  or  not,  the  opposite  party  is  equally  bound  to  join  in 
demurrer.  For  it  is  a  rule  that  there  can  l>e  no  demurrer  upon 
demurrer,  (Z)  because  the  first  is  sufficient,  notwithstanding  any 
inaccuracy  in  its  form,  to  bring  the  record  before  the  court 
for  their  adjudication;  and,  as  for  traverse  or  pleading  in  con- 
fession and  avoidance,  there  is  of  course  no  ground  for  them 
while  the  last  pleading  still  remains  unanswered,  and  there  is 
nothing  to  oppose  but  an  exception  in  point  of  law. 

(fc)  Supra,  p.  193. 

(Z)  Bac.  Ab.,  Fleas,  etc.  (N.),  * 

1Clay   Fire   Ina  Co.   v.  Wuster-    Issue  in  fact*  see  Keener  v.  Finger, 

hausen,  75  III  285.    As  to  what  is  an    70  N.  C.  4a 


CHAPTEK  YIII. 

RULES  WHICH  TEND  TO  SECURE  THE  MATERIALITY  OF  THE 

ISSUE. 

RULE  L 

§  170.  Traverse  must  not  be  taken  on  an  immaterial  alle- 
gation, (m)  — 

This  rule  prohibits,  first,  the  taking  of  a  traverse  on  mat- 
ter either  irrelevant  or  insufficient  in  law.  Thus,  in  debt  for 
rent  against  a  lessee  for  years,  if  the  defendant  plead  that 
before  the  rent  was  due  he  assigned  the  term  to  another, 
of  which  the  plaintiff  had  notice,  a  traverse  of  the  notice 
would  be  bad,  as  producing  an  immaterial  issue ;  for  it  is  not 
mere  notice  of  the  assignment  that  discharges  the  lessee,  but 
the  lessor's  consent  to  the  assignment  or  his  acceptance  of 
rent  from  the  assignee,  (n)  So  in  an  action  of  debt  on  bond 
conditioned  for  the  payment  of  ten  pounds  ten  shillings  at  a 
certain  day,  if  the  defendant  should  plead  payment  of  ten 
pounds,  a  traverse  of  such  payment  would  be  bad,  for  if  the 
whole  sum  of  ten  pounds  ten  shillings  were  not  paid,  the  bond 
would  be  forfeited ;  and  the  payment  of  a  less  sum  is  wholly 
immaterial.  (<?)  The  plaintiff  in  such  case  should  demur.1 

Again,  this  rule  prohibits  the  taking  of  a  traverse  on  matter 
of  inducement;  (p} 2  that  is,  matter  which  is  only  by  way  of 
introduction  and  explanatory,  or  matter  of  aggravation;  (q) 3 
that  is,  matter  which  only  tends  to  increase  the  amount  of 
damages,  and  does  not  concern  the  right  of  action  itself.  Thus, 

Cm)  Com.  Dig.,  Pleader  (R.  8),  (Q.  10);  Bac.  Ab.,  Pleas,  etc.  (H.),5. 

(n)  1  Lev.  82. 

(o)  Hob.  118. 

(p)  Com.  Dig.,  Pleader  (0. 14). 

(«)  12  Mod.  697. 

1  Rogers  v.  Burk,  10  Johns.  400;  Am.  Dec.  658;  Havens  v.  H.  &  N.  H. 
Thompson  v.  Fellows,  21  N.  H.  425;  Ry.,  28  Conn.  69.    In  Donovan  v. 
Caulfield  v.  Sanders,  17   CaL   569;  Hartford,  etc.  R.  Co.,  stated   ante, 
Castro  v.  Wetmore,  16  id.  379.  p.  107,  the  allegation  in  question  was 

2  Clement  v.  Flight,  16  M.  &  W.  42.  in  the  inducement  and  immaterial. 

3  Rasor  v.  Quails,  4  Blackf.  286,  30 


§  171.]  RULES   TO   SECURE   MATERIALITY   OF   ISSUE.  341 

in  an  action  of  debt  against  executors,  they  pleaded  a  judg- 
ment recovered,  and  that  there  were  no  assets  in  their  hands 
beyond  what  was  sufficient  to  satisfy  the  said  judgment.  The 
plaintiff  replied  that  the  judgment  was  satisfied,  but  kept  on 
foot  by  fraud  and  covin.  The  defendant  traversed  that  the 
judgment  was  satisfied;  and  this  was  considered  as  a  bad  trav- 
erse, because  to  allege  that  it  was  satisfied  was  only  induce- 
ment to  the  allegation  that  it  was  kept  on  foot  by  fraud  and 
covin.  This  was  the  main  point,  and  this  should  have  been 
the  subject  of  the  traverse,  (r)  But  if  a  matter,  though  alleged 
in  the  form  of  inducement,  is  not  merely  of  that  quality,  but 
of  the  substance  of  the  cause,  it  may,  in  some  cases,  be  trav- 
ersed. Thus,  where  the  plaintiff  declared,  in  trespass  on  the 
case  for  slander,  that  he  was  sworn  before  the  lord  mayor, 
and  that  the  defendant  said  he  was  falsely  sworn  in  that  oath, 
it  was  held  that  the  plaintiff's  being  sworn  before  the  lord 
mayor,  though  in  the  nature  of  inducement,  was  a  traversable 
matter,  being  of  the  substance  of  the  action,  (s) 

§  171.  But  it  is  a  rule  that  where  there  are  several  ma- 
terial allegations  it  is  in  the  option  of  the  pleader  to  trav- 
erse which  he  pleases,  (t)  Thus,  in  trespass,  if  the  defendant 
pleads  that  A.  was  seised  and  demised  to  him,  the  plaintiff 
may  traverse  either  the  seisin  or  the  demise,  (u) l  Again,  in 
trespass,  the  defendant  pleads  that  A.  was  seised  and  enfeoffed 
B.,  who  enfeoffed  C.,  who  enfeoffed  D.,  whose  estate  the  de- 
fendant hath ;  in  this  case  the  plaintiff  may  traverse  which  of 
the  feoffments  he  pleases,  (a?) 

The  principle  of  this  rule  is  sufficiently  clear;  for  it  is  evi- 
dent that  where  the  case  of  any  party  is  built  upon  several 
allegations,  each  of  which  is  essential  to  its  support,  it  is  as 
effectually  destroyed  by  the  demolition  of  any  one  of  these 
parts  as  of  another. 

(r)  Com.  Dig.,  Pleader  (G.  14);  Hardr.  70. 

(«)  Kinnereley  v.  Cooper,  Cro.  Eliz.  168.  See,  also,  Carvlck  T.  Blagrave,  1  Brod.  &  Bing. 
631. 

(0  Com.  Dig.,  Pleader  (G.  10);  Read's  Case  [cited  to  Simpson  v.  Hartopp,  Willes,  512, 
1  Sm.  L.  C.  (9th  Am.  ed.)  725],  6  Rep.  24;  Dock  PL  865;  Bac.  Ab^  Pleas,  etc.  (H.),  5,  p.  892 
(5th  ed.);  1  Lutw.  101. 

(u)  Com.  Dig.,  Pleader  (G.  10);  Hardr.  817. 

(x)  Doct  PL  865. 

1  Hopkins  v.  Medley,  97  III  402;  210;  Learmunth  v.  Grandine,  4  M. 
Heydon  v.  Thompson,  1  Ad.  &  EL  &  W.  65& 


34:2  EULES   TO   SECURE   MATEKIALITY    OF    ISSUE.  [§  172. 

RULE  IL 

§  172.  A  traverse  must  not  be  too  large,  nor,  on  the 
other  hand,  too  narrow,  (y) ! — 

As  a  traverse  must  not  be  taken  on  an  immaterial  allega- 
tion, so  when  applied  to  an  allegation  that  is  material  it 
ought,  in  general^  to  take  in  no  more  and  no  less  of  that  alle- 
gation than  is  material.  If  it  involves  more,  the  traverse  is 
said  to  be  too  large;  if  less,  too  narrow. 

A  traverse  may  be  too  large  by  involving  in  the  issue: 
quantity,  time,  place  or  other  circumstances  which,  though 
forming  part  of  the  allegation  traversed,  are  immaterial  to 
the  merits  of  the  cause.  Thus,  in  an  action  of  debt  on  bond, 
conditioned  for  the  payment  of  £1,550,  the  defendant  pleaded 
that  part  of  the  sum  mentioned  in  the  condition,  to  wit, 
£1,500,  was  won  by  gaming,  contrary  to  the  statute  in  such 
case  made  and  provided,  and  that  the  bond  was  consequently 
void.  The  plaintiff  replied  that  the  bond  was  given  for  a 
just  debt,  and  traversed  that  the  £1,500  was  won  by  gaming 
in  manner  and  form  as  alleged.  On  demurrer  it  was  objected 
that  the  replication  was  ill,  because  it  made  the  precise  sum 
parcel  of  the  issue,  and  tended  to  oblige  the  defendant  to 
prove  that  the  whole  sum  of  £1,500  was  won  by  gaming ; 
whereas  the  statute  avoids  the  bond  if  any  part  of  the  con- 
sideration be  on  that  account.  The  court  was  of  opinion 
that  there  was  no  color  to  maintain  the  replication ;  for  that 
the  material  part  of  the  plea  was  that  part  of  the  money 
for  which  the  bond  was  given  was  won  by  gaming,  and 
that  the  words,  "to  wit,  £1,500,"  were  only  form,  of  which 
the  replication  ought  not  to  have  taken  any  notice,  (s)  So 
where  the  plaintiff  pleaded  that  the  queen,  at  a  manor  court, 
held  on  such  a  day  by  I.  S.,  her  steward,  and  by  copy  of 
court  roll,  etc.,  granted  certain  land  to  the  plaintiff's  lessor, 
and  the  defendant  rejoined,  traversing  that  the  queen  at  a 
manor  court,  held  such  a  day  by  I.  S.,  her  steward,  granted 
the  land  to  the  lessor,  the  court  held  that  the  traverse  was 
ill,  "  for  the  jury  are  thereby  bound  to  find  a  copy  on  such  a 

(y)  1  Saund.  268,  n.  1,  269,  n.  2;  Com.  Dig.,  Pleader  (G.  15),  (G.  16). 

(«)  Colborne  v.  Stockdale,  Str.  498;  8  Mod.  58,  S.  C.  [cited  in  1  Sm.  L.  C.  (9th  Am.  ed.)  657]. 

lArlett  v.  Ellis,  7  Taunt  846;  Stubbs  v.  Lainson,  1  M.  &  W.  728; 
Weaver  v.  Lloyd,  2  B.  &  G  678;  Wadhams  v.  Swan,  109  III  46. 


§  173.]  BULBS   TO   SECUKE   MATERIALITY    OF    ISSUE.  3i3 

day,  and  by  such  a  steward,  which  ought  not  to  be."  The 
traverse,  it  seems,  ought  to  have  been  that  the  queen  did  not 
grant  in  manner  and  form  as  alleged,  (a) 

Again,  a  traverse  may  be  too  large  by  being  taken  in  the 
conjunctive  instead  of  the  disjunctive,  where  it  is  not  material 
that  the  allegation  traversed  should  be  proved  conjunctively. 
Thus,  in  an  action  of  assumpsit,  the  plaintiff  declared  on  a 
policy  of  insurance  and  averred  "  that  the  ship  insured  did 
not  arrive  in  safety,  but  that  the  said  ship,  tackle,  apparel, 
ordnance,  munition,  artillery,  boat  and  other  furniture  were 
sunk  and  destroyed  in  the  said  voyage."  The  defendant 
pleaded  with  a  traverse,  "  Without  this,  that  the  said  ship, 
tackle,  apparel,  ordnance,  munition,  artillery,  boat  and  other 
furniture  were  sunk  and  destroyed  in  the  voyage  in  manner 
and  form  as  alleged."  Upon  demurrer  this  traverse  was  ad- 
judged to  be  bad,  and  it  was  held  that  the  defendant  ought  to 
have  denied  disjunctively  that  the  ship  or  tackle,  etc.,  was  sunk 
or  destroyed;1  because  in  this  action  for  damages  the  plaintiff 
would  be  entitled  to  recover  compensation  for  any  part  of 
that  which  was  the  subject  of  insurance  and  had  been  lost; 
whereas  (it  was  said),  if  issue  had  been  taken  in  the  conjunc- 
tive form  in  which  the  plea  was  pleaded,  "and  the  defendant 
should  prove  that  only  a  cable  or  anchor  arrived  in  safety,  he 
would  be  acquitted  of  the  whole."  (5)2 

§  173.  On  the  other  hand,  however,  a  party  may,  in  gen. 
eral,  traverse  a  material  allegation  of  title  or  estate  to  the 
extent  to  which  it  is  alleged,  though  it  need  not  have  been 
alleged  to  that  extent;  and  such  traverse  will  not  be  con- 
sidered as  too  large,  (c)  For  example,  in  an  action  of  re- 
plevin, the  defendant  avowed  the  taking  of  the  cattle  as  dam- 
age feasant,  in  the  place  in  which,  etc. ;  the  same  being  the 
freehold  of  Sir  F.  L.  To  this  the  plaintiff  pleaded  that  he 
was  seised  in  his  demesne  as  of  fee  of  B.  close,  adjoining  to 
the  place  in  which,  etc. ;  that  Sir  F.  L.  was  bound1  to  repair 
the  fence  between  B.  close  and  the  place  in  which,  etc. ;  and 

(o)  Lane  v.  Alexander,  Yelv.  122. 

(6)  Goram  v.  Sweeting,  2  Saund.  206. 

(c)  Com.  Dig.,  Pleader  (G.  16);  2  Saund,  207  a,  n.  24;  Wood  T.  Buddin,  Hob.  119;  Yelv. 
196;  1  Chitty,  586.  2  Str.  818,  is  apparently  contra;  but  from  the  report  of  the  same  case, 
Ld.  Ray.  1550,  it  may  be  reconciled  with  the  other  authorities. 

iMoser  v.  Jenkins,  5  Oreg.  447;  nant  and  bad  under  the  code.  Stuber 
Leroux  v.  Murdock,  51  CaL  541.  v.  McEntee,  142  N.  Y.  206;  Bliss, 

2  This  is  a  species  of  negative  preg-    Code  PL,  §  332,  note. 


344  EULES   TO    SECURE   MATERIALITY   OF   ISSUE.  [§  174. 

that  the  cattle  escaped  through  a  defect  of  that  fence.  The 
defendant  traversed  that  the  plaintiff  was  seised  in  his  de- 
mesne as  of  fee  of  B.  close,  and  on  demurrer  the  court  was  of 
opinion  that  it  was  a  good  traverse;  for  though  a  less  estate 
than  a  seisin  in  fee  would  have  been  sufficient  to  sustain  *the 
plaintiff's  case,  yet  as  the  plaintiff,  who  should  best  know  what 
estate  he  had,  had  pleaded  a  seisin  in  fee,  his  adversary  was 
entitled  to  traverse  the  title  so  laid,  (d)  Again,  in  an  action 
of  trespass  for  trespasses  committed  in  a  close  of  pasture 
containing  eight  acres  in  the  town  of  Tollard  Koyal,  the  de- 
fendant pleaded  that  "W.,  Earl  of  Salisbury,  was  seised  in  fee 
and  of  right  of  an  ancient  chase  of  deer  called  Cranborn, 
and  that  the  said  chase  did  extend  itself  as  well  in  and  through 
the  said  eight  acres  of  pasture  as  in  and  through  the  said 
town  of  Tollard  Royal,  and  justified  the  trespasses  as  com- 
mitted in  using  the  said  chase.  The  plaintiff  traversed  that 
the  said  chase  extended  itself  as  well  to  the  eight  acres  as  to 
the  whole  town;  and  issue  being  taken  thereon,  it  was  tried 
and  found  for  the  plaintiff.  It  was  then  moved,  in  arrest  of 
judgment,  "  that  this  issue  and  verdict  were  faulty  because 
if  the  chase  did  extend  to  the  eight  acres  only  it  was  enough 
for  the  defendant;  and  therefore  the  finding  of  the  jury  that 
it  did  not  extend  as  well  to  the  whole  town  as  to  the  eight 
acres  did  not  conclude  against  the  defendant's  right  in  the 
eight  acres,  which  was  only  in  question.  But  it  was  answered 
by  the  court  that  there  was  no  fault  in  the  issue,  much  less 
in  the  verdict  (which  was  according  to  the  issue),  but  the  fault 
was  in  the  defendant's  plea ;  for  he  puts  in  his  plea  more  than 
he  needed,  viz.,  the  whole  town,  which  being  to  his  own  dis- 
advantage and  to  the  advantage  of  the  plaintiff,  there  was  no 
reason  for  him  to  demur  upon  it,  but  rather  to  admit  it,  as  he 
did,  and  so  to  put  it  in  issue.  And  so  judgment  was  given  for 
the  plaintiff."  (e) 

§  174.  Of  a  traverse  too  narrow,  the  following  is  an  ex- 
ample: In  an  action  of  assumpsit  brought  for  a  compensation 
for  the  plaintiff's  service  as  a  hired  servant,  the  plaintiff  al- 
leged that  he  served  from  March  21,  1647,  to  November  1, 
1664;  the  defendant  pleaded  that  the  plaintiff  continued  in 

(d)  Sir  Francis  Leke's  Case,  Dyer,  364  b;  2  Saund.  206  a,  n.  22. 

(e)  Wood  v.  Budden,  Hob.  119. 


§  174.]  RULES   TO   SECUKE   MATERIALITY    OF    ISSUE.  34:5 

the  service  till  December,  1658,  and  then  voluntarily  quitted 
the  service;  without  this,  that  he  served  until  November  1, 
1664'  This  was  a  bad  traverse ;  for  as  the  plaintiff  in  this  ac- 
tion for  damages  is  entitled  to  compensation  pro  tanto  for 
any  period  of  service,  it  is  obviously  no  answer  to  say  that 
he  did  not  serve  the  whole  time  alleged.  (/)  So  a  traverse 
may  be  too  narrow  by  being  applied  to  part  only  of  an  allega- 
tion which  the  law  considers  as  in  its  nature  indivisible  and 
entire ;  such  as  that  of  a  prescription  or  grant.  Thus,  in  an 
action  of  trespass  for  breaking  and  entering  the  plaintiffs 
close,  called  S.  C.,  and  digging  stones  therein,  the  defendant 
pleaded  that  there  are  certain  wastes  lying  open  to  one  an- 
other —  one  the  close  called  S.  C.,  and  the  other  called  S.  G., — 
and  so  proceeded  to  prescribe  for  the  liberty  of  digging  stones 
in  both  closes,  and  justified  the  trespasses  under  that  prescrip- 
tion. The  replication  traversed  the  prescriptive  right  in  S.  C. 
only,  dropping  S.  G. ;  but  the  court  held  that  the  traverse 
could  not  be  so  confined  and  must  be  taken  on  the  whole  pre- 
scription as  laid,  (g) 

(/)  Osborn  y.  Rogers,  1  Saund.  267,  268,  n.  1  [8  8m.  L.  a  (9th  Am.  ed.)  771]. 
<g\  Morewood  v.  Wood,  4  T.  R.  157  [cited,  1  Sm.  L,  C.  (9th  Am.  ed.)  284] 


CHAPTEE  IX. 

OF  EULES  WHICH  TEND  TO  PRODUCE   SINGLENESS  OR  UNITY 

IN  THE  ISSUE. 

EuLE  I. 

§  175.  Pleadings  must  not  be  double.^)1  — 

This  rule  applies  both  to  the  declaration  and  subsequent 
pleadings.  Its  meaning,  with  respect  to  the  former,  is  that 
the  declaration  must  not,  in  support  of  a  single  demand,  allege 
several  distinct  matters,  by  any  one  of  which  that  demand  is 
sufficiently  supported.  With  respect  to  the  subsequent  plead- 
ings the  meaning  is  that  none  of  them  is  to  contain  several 
distinct  answers  to  that  which  preceded  it;  and  the  reason  of 
the  rule  in  each  case  is  that  such  pleading  tends  to  several 
issues  in  respect  of  a  single  claim,  (i) 2 

The  rule,  it  may  be  observed,  in  its  terms  points  to  double- 
ness  only,  as  if  it  prohibited  only  the  use  of  two  allegations  or 
answers  of  this  description,  but  its  meaning,  of  course,  equally 
extends. to  the  case  of  more  than  two,  the  term  doulleness 
or  duplicity  being  applied  (though  with  some  inaccuracy)  to 
either  case. 

Of  this  rule,  as  applied  to  the  declaration,  the  following  is 
.an  example :  The  plaintiff  declared  in  debt  on  a  penal  bill,  (k) 
by  which  the  defendant  was  to  pay  ten  shillings  on  the  llth 
of  June,  and  ten  shillings  upon  the  10th  of  July  next  follow- 
ing, and  ten  shillings  every  three  weeks  after,  till  a  certain 
total  sum  was  satisfied  by  such  several  payments;  and  by  the 

(h)  Com.  Dig.,  Pleader  (0.  33),  (E.  2),  (F.  16);  Bac.  Ab.,  Pleas,  etc.  (K.);  Humphreys  v. 
Bethily,  2  Vent.  198. 

(f )  La  cause  est  pur  ceo,  que  deux  issues  purroient  estre  pris  sur  les  plees.  Per  Finch- 
den,  40  Ed.  3,  45.  See  also  15  Ed.  4,  1. 

(k)  Bills  penal  are  instruments  not  now  In  use,  having  been  superseded  by  bonds  with 
•conditions.  The  example  in  the  text  would  therefore  not  occur  in  modern  practice,  but 
serves  equally  well  the  purpose  of  illustration. 

1  Bryan  v.  Buford,  7  J.  J.  Marsh.  Adrn'r,  11  Leigh,  343;  Smith's  Adm'r 
(Ky.)  335;  Welch  v.  Jamison,  2  Miss.  v.  Lloyd's  Ex'r,  16  Gratt.  310,  313; 
160;  Taft  v.  Brewster,  9  Johns.  334;  Graysonv.  Buchanan,  88  Va.  251  ;Kipp 
Connelly  v.  Pierce,  7  Wend.  129.    But  v.  Bell,  86  111.  577.     It  was  held  in 
eee  Ewing  v.  Shaw,  83  Ala.  333.  Smith's  Adm'r  v.  Lloyd's  Ex'r,  supra, 

2  "  The  objection  of  duplicity  being  that  the  effect  of  the  statute  abolish- 
to  the  form,  the  party  was  required  ing  special  demurrers  was  to  abolish 
by  special  demurrer  to  indicate  the  the  objection.     N.  &  W.  R.  Co.  v. 
very  point.     Smith  v.  Clench,  2  Ad.  Ampey,  93  Va.  108. 

<fe  Ellis  (N.  S.),  836;  Fairfax  v.  Lewis' 


§  175.]  RULES   TO   PRODUCE   SINGLENESS    OF    ISSUE.  347 

said  bill  the  defendant  bound  himself  for  the  true  payment 
of  the  said  several  sums,  in  the  penal  sura  of  seven  pounds; 
and  the  plaintiff  alleged  that  the  defendant  did  not  pay  the 
said  total  sum,  or  any  part  thereof,  upon  the  several  days  afore- 
said; whereby  an  action  had  accrued  to  him  to  demand  the 
said  penalty  of  seven  pounds.  This  was  held  bad  for  duplic- 
ity. For,  if  the  defendant  had  failed  in  payment  of  any  on* 
of  the  sums,  such  failure  would  alone  be  a  breach  of  the  con- 
dition, and  sufficient  to  entitle  the  plaintiff  to  the  penalty  he 
claimed ;  and  the  plaintiff  ought,  therefore,  to  have  confined 
himself  to  the  allegation  of  the  non-payment  of  one  of  those 
sums  only.  (Z)  So,  where  the  plaintiff  declared  in  assumpsit 
that  the  defendant  was  indebted  to  him  in  such  a  sum  for 
nourishing  one  E.  L.  at  the  request  of  the  defendant,  which 
the  latter  promised  to  pay,  and  also  that  the  defendant  prom- 
ised to  pay  him  so  much  as  he  reasonably  deserved  to  have 
for  nourishing  the  said  E.  L.  during  the  same  time,  this  was 
bad  for  duplicity;  and,  indeed,  also  for  repugnancy  (another 
fault  in  pleading  that  will  be  hereafter  considered),  as  the 
two  promises  —  to  pay  a  sum  certain,  and  to  pay  quantum 
meruit  —  were  inconsistent  and  could  not  stand  together,  (m) 
Of  duplicity  in  pleadings  subsequent  to  the  declaration,  the 
following  example  occurs  in  a  plea  in  abatement.  The  de- 
fendant pleaded,  in  disability  of  the  person  of  the  plaintiff, 
ten  different  outlawries  adjudged  against  him;  and  it  was 
held  that  the  plea  was  ill  for  duplicity,  because  the  plaint- 
iff was  disabled  as  well  by  one  outlawry  as  by  the  whole 
ten.  (n)  The  following  is  an  instance  of  duplicity  in  a  plea 
in  liar:  In  trespass  for  breaking  a  close,  and  depasturing  the 
herbage  with  cattle,  if  the  defendant  pleads  that  A.  had  a 
right  of  common,  and  B.  also  a  right  of  common  in  the  close, 
and  that  the  defendant,  as  their  servant,  and  by  their  com- 
mand, entered  and  turned  in  the  cattle  in  exercise  of  their 
rights  of  common,  the  plea  is  bad  for  duplicity;  (o)  because 
the  title  of  either  one  or  other  of  the  commoners,  and  the  au- 
thority derived  as  his  servant,  would  have  alone  constituted 

(I)  Humphreys  T.  Bethily,  *  Vent.  198,  222. 

(m)  Hart  T.  Longfleld,  7  Mod.  148.    As  to  duplicity  in  the  declaration,  see,  also*  Com- 
wallis  v.  Savery,  2  Burr.  773;  Manser's  Case,  2  Rep.  4. 

(n)  Trevelian  v.  Secomb,  Carth.  8.    See  Appendix,  note  (68). 
(o  )  Vin.  Ab.,  tit.  Double  Pleas  (A.),  114,  cites  15  Hen.  7, 10. 


348  RULES   TO    PRODUCE   SINGLENESS    OF   ISSUE.  [§  176. 

a  sufficient  answer  to  the  declaration.  Duplicity  in  the  repli- 
cation may  be  thus  exemplified:  The  plaintiff  declared  in 
trespass  for  breaking  and  entering  his  stable,  cutting  asunder 
a  beam,  and  throwing  down  the  tiles  of  the  roof.  The  de- 
fendant justified,  as  servant  to  Sir  H.  G. ;  and  pleaded  that 
Sir  H.  G.  was  seised  of  a  wall  in  his  demesne  as  of  fee,  and 
because  the  beam  was  placed  in  the  wall  of  the  said  Sir  H.  G. 
without  his  consent,  the  defendant,  as  his  servant,  in  order  to 
remove  this  nuisance,  did  enter  the  stable  and  cut  the  beam 
as  near  to  the  wall  as  he  could,  doing  as  little  damage  as  pos- 
sible; and  thereby  the  tiles  were  thrown  down.  The  plaintiff 
replied,  traversing  that  the  wall  was  Sir  H.  G.'s ;  and  then, 
with  a  protestation  that  the  wall  was  not  his,  farther  pleaded 
that  the  defendant,  of  his  own  wrong,  did  throw  down  the 
tiles  for  the  cutting  the  beam  as  aforesaid.  The  court  held 
that  the  first  traverse  being  a  complete  answer  to  the  whole, 
the  second  made  the  replication  double,  (p) 

§  176.  Singleness  relates  to  a  single  claim. —  The  object 
of  this  rule  being  to  enforce  a  single  issue  upon  a  single  subject 
of  claim  admitting  of  several  issues,  where  the  claims  are  dis- 
tinct, (#)  the  rule  is,  accordingly,  carried  no  farther  than  this 
in  its  application.  The  declaration,  therefore,  may,  in  support 
of  several  demands,  allege  as  many  distinct  matters  as  are 
respectively  applicable  to  each.1  Thus,  let  one  of  the  examples 
above  given,  with  respect  to  the  declaration,  be  so  far  varied 
as  to  substitute  for  the  case  of  an  action  in  debt  on  a  penal 
bill  for  the  penalty  accrued  in  consequence  of  non-payment 
of  a  sum  by  several  instalments,  the  case  of  an  action  of 
covenant  on  a  covenant  to  pay  that  sum  by  similar  instal- 
ments. In  this  latter  case  the  plaintiff  might,  without  du- 
plicity, declare  that  the  defendant  "  did  not  pay  the  said  total 
sum,  or  any  part  thereof,  upon  the  several  days  aforesaid." 
For  he  does  not,  as  in  the  action  upon  the  penal  bill,  found 

(p)  Humphrey  y.  Churchman,  Rep.  temp.  Hard.  289. 
(q)  Supra,  p.  259. 

1  There  is  no  occasion  to  cite  au-  v.  Meredith,  1  WalL  26,   constitute 

thority  to  support  the  text ;  the  only  one  of  the  best  illustrations  in  the 

difficulty  is  to  ascertain  what  facts  books.    See,  also,  Stearns  v.  Stearns, 

or  how  many  facts  will  constitute  32  Vt.  678;  Garland  v.  Davis,  4  How. 

but  a  single  cause  of  defense.  The  ar-  131 ;  Willey  v.  Carpenter,  64  Vt.  212; 

guments  and  opinion  in  Clearwater  Kipp  v.  Bell,  86  I1L  577. 


§  176.]  KULES   TO   PKODUCE   SINGLENESS    OF    ISSUE.  349 

upon  such  non-payments  a  single  claim,  viz.,  the  claim  to  the 
penalty  of  seven  pounds ;  there  being  no  penalty  in  question, 
his  claims  are  multiplied  in  proportion  to  the  number  of  non- 
payments; that  is,  he  is  entitled  to  ten  shillings  in  respect  of 
the  first  default,  and  ten  shillings  more  upon  each  of  the  rest. 
The  allegation  of  several  defaults  is,  therefore,  in  this  case, 
the  allegation  of  so  many  distinct  demands,  and  consequently 
allowable,  (r)  So  the  plea,  though  it  must  not  contain  several 
answers  to  the  whole  of  the  declaration,  may  nevertheless 
make  distinct  answers  to  such  parts  of  it  as  relate  to  different 
matters  of  claim  or  complaint,  (s)  Thus,  in  the  preceding  ex- 
ample of  duplicity  in  a  plea  in  bar,  if  the  case  were  a  little 
varied,  and  the  defendant,  being  charged  with  putting  five 
beasts  on  the  common,  had  pleaded  that  A.  and  B.  had  re- 
spectively rights  of  common  there,  and  that  he,  as  the  servant 
of  A.,  put  in  two  of  the  beasts  in  respect  of  his  common  right, 
and,  as  the  servant  of  B.,  put  in  three  in  respect  of  his  com- 
mon right,  there  would  no  longer  be  duplicity ;  for  he  pleads 
the  several  titles,  not  as  several  answers  to  the  same  subject 
of  claim  or  complaint,  but  as  distinct  answers  to  different 
matters  of  complaint  arising  in  respect  of  different  cattle.  (£) 
So  in  the  replication  and  other  subsequent  parts  of  the  series, 
a  severance  of  pleading  may  take  place  in  respect  of  several 
subjects  of  claim  or  complaint.  Thus,  if  an  action  be  brought 
for  trespasses  in  closes  A.  and  B.,  and  defendant  pleads  a  single 
matter  of  defense  applying  to  both  closes,  the  plaintiff  is  still 
at  liberty,  in  his  replication,  to  give  one  answer  as  to  so  much 
of  the  plea  as  applies  to  close  A.,  and  another  answer  as  to  so 
much  of  the  plea  as  applies  to  close  B.  (u) 

The  power,  however,  of  alleging  in  a  plea  distinct  matters 
in  answer  to  such  parts  of  the  declaration  as  relate  to  differ- 
ent claims,  seems  to  be  subject  to  this  restriction :  that  neither 
of  the  matters  so  alleged  be  such  as  would  alone  be  a  sufficient 
answer  to  the  whole.  Thus,  if  an  action  be  brought  on  two 
bonds,  though  the  defendant  may  plead,  as  to  one,  payment, 
and  as  to  the  other,  duress,  yet  if  he  pleads  as  to  one  a  release 

(r)  See  Bac.  Ab.,  Pleas,  etc.,  p.  446,  5th  ed. 
G)  Com.  Dig.,  Pleader  (E.  2);  Co.  Litt.  304  a. 
(0  Vin.  Ab.,  tit.  Double  Pleas  (A.),  115. 
(w)  See  an  example  in  Johns  v.  Whitley,  3  Wils.  127. 
23 


350 


EULES   TO   PRODUCE   SINGLENESS   OF   ISSUE.       [§§  177,  178. 


of  all  actions,  and  as  to  the  other,  duress,  it  will  be  double, 
for  the  release  is  alone  a  sufficient  answer  to  both  bonds,  (x) 

§  177.  Several  defendants. —  Again,  if  there  be  several  de- 
fendants, the  rule  against  duplicity  is  not  carried  so  far  as  to 
compel  each  of  them  to  make  the  same  answer  to  the  declara- 
tion. Each  defendant  is  at  liberty  to  use  such  plea  as  he  may 
think  proper  for  his  own  defense ;  and  they  may  either  join 
in  the  same  plea,  or  sever,  at  their  discretion,  (y) l  But  if  the 
defendants  have  once  united  in  the  plea,  they  cannot  after- 
wards sever  at  the  rejoinder,  or  other  later  stage  of  the 
pleading.* 

Where,  in  respect  of  several  subjects  or  several  defendants, 
a  severance  has  thus  taken  place  in  the  pleading,  this  may  of 
course  lead  to  a  corresponding  severance  in  the  whole  subse- 
quent series,  and  (as  the  ultimate  effect)  to  the  production  of 
several  issues.  And  where  there  are  several  issues,  they  may 
respectively  be  decided  in  favor  of  different  parties,  and  the 
judgment  will  follow  the  same  division.1 

Such  being,  in  general,  the  nature  of  duplicity,  the  follow- 
ing rules  or  points  of  remark  will  tend  to  its  further  illustra- 
tion: 

§  178.  Illustrations  of  duplicity — 1.  A  pleading  will  le 
double  that  contains  several  answers,  whatever  be  the  class  or 
quality  of  the  answer.*  Thus  it  will  be  double  by  containing 
several  matters  in  abatement,  or  several  matters  in  lar;  (z)  or 
by  containing  one  matter  in  abatement,  and  another  in  ~bar.  (a) 
So  a  pleading  will  be  double  by  containing  several  matters  in 

(x)  Doct.  PL,  p.  136;  18  Vin  Ab.,  tit.  Double  Pleas  (D.).  In  Viner,  however,  some  cases 
are  cited  which  show  that  this  restriction  has  not  been  uniformly  observed,  or  is  at  least 
to  be  taken  with  several  exceptions. 

(y)  Co.  Litt.  303  a.  It  is  said,  however,  Essengton  v.  Boncher,  Hob.  245,  that  they  can- 
not sever  in  dilatory  pleas.  Sed  qu.f  See  Cuppledick  v.  Terwhit,  Hob.  250. 

(z)  Com.  Dig.,  Pleader  (E.  2);  and  see  the  cases  already  cited  on  the  subject  of  du- 
plicity. 

(o)  Semb.  Com.  Dig.,  Pleader  (E.  2);  Bleeke  v.  Grove,  1  Sid.  17ft. 

l  In  such  case  the  plea  must  show  same  defense  they  must  set  it  up  in 

a  good  defense  to  all  or  it  will  be  one  plea.    Meagher  v.  Bachelder,  6 

good  as  to  none.    A  plea  must  do  all  Mass.  444. 

it  professes.     Earl  of  Manchester  v.  *  Yeazel  v.  Alexander,  58  DL  254 ; 

Vale,   1  Saund,  28,  n. ;    Gleason  v.  Baker  v.  Mich.  S.  &  N.  L  Ry.,  42  id. 

Edmunds,  2  Scam.  448 ;  Bradley  v.  73 ;  Cooley  on  Torts  (2d  ed.),  157. 

Powers.  7  Cow.     830 ;  1  Waterman  *  See  People  v.  Raisin  &  L.  E.  R. 

on  Trespass,  §  81.  Co.,  12  Mich.  389. 

*But  in  contract  if  all  claim  the 


§  179.]  KULES   TO   PRODUCE    SINGLENESS   OF    ISSUE.  351 

confession  and  avoidance,  or  several  answers  by  way  of  traverse; 
OP  by  combining  a  traverse  with  a  matter  in  confession  and 
avoidance,  (b) 

2.  Matter  may  suffice  to  make  a  pleading  double,  though  it  b« 
ill  pleaded.  Thus,  in  trespass  for  assault  and  battery,  the  de- 
fendant pleaded  that  he  committed  the  trespasses  in  the  mod- 
erate correction  of  the  plaintiff,  as  his  servant,  and  farther 
pleaded  that  since  that  time  the  plaintiff  had  discharged  and 
released  to  him  the  said  trespasses,  without  alleging,  as  he 
ought  to  have  done,  a  release  under  seal.  The  court  held 
that  this  plea  was  double  —  the  moderate  correction  and  the 
release  being  a  matter  of  defense;  and  though  the  release 
was  insufficiently  pleaded,  yet  as  it  was  a  matter  that  a  ma- 
terial issue  might  have  been  taken  upon,  it  sufficed  to  make 
the  plea  double,  (c) 

§179.  Matter  not  constituting  duplicity. —  3.  Matter  im- 
material cannot  operate  to  make  a  pleading  double,  (d)  l  Thus, 
in  an  action  by  the  executor  of  J.  G.,  on  a  bond  conditioned 
that  the  defendant  should  warrant  to  J.  G.  a  certain  meadow, 
the  defendant  pleaded  that  the  said  meadow  was  copyhold  of 
a  certain  manor,  and  that  there  is  a  custom  within  the  manor 
that  if  the  customary  tenants  fail  in  payment  of  their  rents 
and  services,  or  commit  waste,  then  the  lord  for  the  time 
being  may  enter  for  forfeiture;  and  that  the  said  J.  G.,  dur- 
ing his  life,  peaceably  enjoyed  the  meadow,  which  descended 
after  his  death  to  one  B.,  his  son  and  heir,  who,  of  his  own 
wrong,  entered  without  the  admission  of  the  lord  against  the 
custom  of  the  manor,  and  because  three  shillings  of  rent  were 
in  arrear  on  such  a  day  the  lord  entered  into  the  meadow,  as 
into  lands  forfeited.  On  demurrer  it  was  objected  (among 

(&)  Com.  Dig.,  Pleader  (E.  2);  Bac.  Ab.,  Pleas,  etc.  (K.);  and  see  the  cases  already  cited. 

(c)  Bac.  Ab.,  Pleas,  etc.  (K.),  2;  Bleeke  v.  Grove,  Sid.  175;  Keble,  661. 

(d)  Bac.  Ab.,  Pleas,  etc.  (K.),  2;  1  Hen.  7, 16;  Executors  of  Grenelife,  Dyer,  42b.;  Doct. 
PI.  138.    There  is,  however,  a  dictum  of  Doddridge,  J.,  that  a  plea  may  be  double  though 
only  one  of  the  matters  be  material  (Calfe  v.  Nevil,  Poph.  186),  but  the  weight  of  the  au- 
thorities and  the  reason  of  the  thing  are  opposed  to  this  opinion. 

lLordv.  Tyler,  14  Pick.  156;  Perry  238;   Smith  v.  Holmes,  54  id.  105; 

v.  Marsh,  25  Ala.  659 ;  Penton  v.  Hoi-  Hamilton  v.  Smith,  39  id  222.     Of. 

land,    17    Johns.    92 ;     Hereford    v.  Vaughan  v.  Evarts,  40  Vt  526 ;  James 

Crow,  3  Scam.  423 ;  Comstock  v.  Me-  v.  Dunlap,  2  Scam.  481 ;  Hopkins  v. 

Evoy,    52  Mich.  324 ;  Monaghan  v.  Medley,  97  111.  403. 
Agricultural   Fire   Ina   Co.,  53    id. 


352 


KULES   TO   PEODUCE   SINGLENESS   OF    ISSUE.       [§§  180,  181. 


other  things)  that  the  plea  was  double,  because  in  showing 
the  forfeiture  to  have  accrued  by  the  heir's  own  wrongful 
act,  two  several  matters  are  alleged :  First,  that  he  entered 
without  admission,  against  the  custom ;  secondty,  that  three 
shillings  of  rent  were  in  arrear.  But  the  judges  held  that  the 
only  sufficient  cause  of  forfeiture  was  the  non-payment  of 
rent ;  that  there  being  no  custom  alleged  for  forfeiture  in  re- 
spect of  entry  without  admission,  the  averment  of  such  entry 
MTas  mere  surplusage,  and  could  not  therefore  avail  to  make 
the  plea  double,  (e)  It  is,  however,  to  be  observed  that  the 
plea  seems  to  rely  on  the  non-payment  of  the  rent  as  the  only 
ground  of  forfeiture ;  for  it  alleges  that  "  because  three  shil- 
lings of  the  rent  were  in  arrear  the  lord  entered;"  and  the 
court  noticed  this  circumstance.  The  case,  therefore,  does 
not  explicitly  decide  that  where  two  several  matters  are  not 
only  pleaded,  but  relied  upon,  the  immateriality  of  one  of 
them  shall  prevent  duplicity ;  but  the  manner  in  which  the 
judges  express  themselves  seems  to  show  that  the  doctrine 
goes  to  that  extent,  and  there  are  other  authorities  the  same 
way.  (/) 

§  180.  Material  matter  ill  pleaded. —  This  doctrine,  that  a 
plea  may  be  rendered  double  by  matter  ill  pleaded,  but  not 
by  immaterial  matter,  quite  accords  with  the  object  of  the  rule 
against  duplicity,  as  formerly  explained,  (g)  That  object  is 
the  avoidance  of  several  issues.  Now,  whether  a  matter  be 
well  or  ill  pleaded,  yet  if  it  be  sufficient  in  substance,  so  that 
the  opposite  party  may  go  to  issue  upon  it  if  he  chooses  to 
plead  over  without  taking  the  formal  objection,  such  matter 
tends  to  the  production  of  a  separate  issue,  and  is  on  that 
ground  held  to  make  the  pleading  double.  On  the  other  hand, 
if  the  matter  be  immaterial,  no  issue  can  properly  be  taken 
upon  it;  it  does  not  tend,  therefore,  to  a  separate  issue,  nor, 
consequently,  fall  within  the  rule  against  duplicity. 

§  181.  Inducement. —  4.  JWo  matter  will  operate  to  make  a 
pleading  double  that  is  pleaded  only  as  necessary  inducement 
to  another  allegation.  Thus,  it  may  be  pleaded  without  du- 
plicity, that  after  the  cause  of  action  accrued  the  plaintiff  (a 

(e)  Executors  of  Qrenelif  e,  Dyer,  48. 

(/)  Bac.  Ab.,  Pleas,  etc.  (K.),  2. 

<0)  Supra,  p.  348;  and  see,  also,  p.  159. 


$  182.]  BULES   TO   PRODUCE    SINGLENESS   OF   ISSUE.  353 

woman)  took  husband,  and  that  the  husband  afterwards  re- 
leased the  defendant ;  for  though  the  coverture  is  itself  a  de- 
fense as  well  as  the  release,  yet  the  averment  of  the  coverture 
is  a  necessary  introduction  to  that  of  the  release.  (A)  This 
exception  to  the  general  rule  is  prescribed  by  an  evident  prin- 
ciple of  justice ;  for  the  party  has  a  right  to  rely  on  any  single 
matter  that  he  pleases  in  preference  to  another,  as  in  this  in- 
stance on  the  release  in  preference  to  the  coverture ;  but  if  a 
necessary  inducement  to  the  matter  on  which  he  relies,  when 
itself  amounting  to  a  defense,  were  held  to  make  his  pleading 
double,  the  effect  would  be  to  exclude  him  from  this  right, 
and  compel  him  to  rely  on  the  inducement  only.1 

§  182.  Many  facts  constituting  one  point. —  5.  No  matters, 
however  multifarious,  will  operate  to  make  a  pleading  double,  that 
together  constitute  but  one  connected  proposition  or  entire  point? 
Thus,  to  an  action  for  assault  and  imprisonment,  if  the  de- 
fendant plead  that  he  arrested  the  plaintiff  on  suspicion  of 
felony,  he  may  set  forth  any  number  of  circumstances  of 
suspicion,  though  each  circumstance  may  be  alone  sufficient 
to  justify  the  arrest;  for  all  of  them  taken  together  do  but 
amount  to  one  connected  cause  of  suspicion,  (i)  This  qualifi- 
cation of  the  rule  against  duplicity  applies  not  only  to  plead- 
ings in  confession  and  avoidance,  but  to  traverses  also;  so 
that  a  man  may  deny  as  well  as  affirm,  in  pleading  any  num- 
ber of  circumstances  that  together  form  but  a  single  point  or 
proposition.  Thus,  in  an  action  of  trespass  for  breaking  the 
plaintiff's  close  and  depasturing  it  with  cattle,  the  defendant 
pleaded  a  right  of  common  in  the  close  for  the  said  cattle, 
being  his  own  commonable  cattle,  levant  and  couchant  upon 
the  premises.  The  plaintiff  in  the  replication  traversed,  "  that 
the  cattle  were  the  defendant's  own  cattle,  and  that  they 
were  levant  and  couchant  upon  the  premises  and  commonable 
cattle."  On  demurrer  for  duplicity  it  was  objected  that 
there  were  three  distinct  facts  put  in  issue  by  this  replica- 

(h)  Bac.  Ab.,  Pleas,  etc.  (K.),  2;  Com.  Dig.,  Pleader  (E.  2). 
(i)  Vin.  Ab.,  Double  Pleas  (A.),  7,  cites  2  Ed.  4,  8. 

1 1  Burr.  320.  ker  v.  Brink,  24  N.  J.  L.  833;  Potter 

2  Russell  v.  Rogers,  15  Wend.  351;  v.  Titcomb.10  Me.  53;  Willey  v.  Car- 

Gaffney  v.  Colwell,6  Hill,  567;  Clear-  penter,  64  Vt.  212;  N.  &  W.  Ry.  Co. 

water  v.  Msredith,  1  Wall  25;  Har-  v.  Ainpey,  93  Va.  108. 


354  EULES    TO   PRODUCE   SINGLENESS   OF    ISSUE.  [§  182. 

tion,  any  one  of  which  would  be  sufficient  by  itself;  but  the 
court  held  that  the  point  of  the  defense  was,  that  the  cat- 
tle in  question  were  entitled  to  common;  that  this  point 
was  single,  though  it  involved  the  three  several  facts  that 
the  cattle  were  the  defendant's  own,  that  they  were  levant 
and  couchant,  and  that  they  were  commonable  cattle ;  that 
the  replication  traversing  these  facts,  in  effect,  therefore, 
only  traversed  the  single  point  whether  the  cattle  were  en- 
titled to  common,  and  was  consequently  not  open  to  the 
objection  of  duplicity.  (&)  The  most  frequent  instance  of  this 
cumulative  traverse,  as  it  may  be  called,  occurs  in  the  case  of 
the  replication  de  injuria  absque  tali  causa.  This  replication 
(it  will  be  recollected)  alleges  that  the  defendant  did  the  act 
(the  subject  of  complaint)  of  his  own  wrong,  and  "  without  the 
cause  alleged^  "  and  this  cause  frequently  consists  of  several 
connected  circumstances,  of  which  the  example  formerly 
given  (Z)  may  serve  as  an  illustration.  It  is,  however  (as  was 
formerly  stated),  (m)  a  restriction  in  the  use  of  this  replication, 
that  it  cannot  be  applied  so  as  to  include  in  the  traverse  any 
matter  alleged  on  the  other  side  in  the  nature  of  title,  interest, 
authority  or  matter  of  record.  If,  therefore,  any  such  matter 
be  contained  in  the  plea,  and  the  plaintiff  wishes  to  deny  it, 
such  matter  must  be  traversed  separately ;  or  if  he  chooses 
not  to  point  the  denial  to  this,  but  to  other  matters  in  the 
plea,  these  other  matters  must  separately  form  the  subject  of 
traverse.  In  the  former  case  the  denial  is  in  the  words  of  the 
allegation ;  in  the  latter,  the  usual  form  is  to  plead  with  a 
protestation,  and  a  traverse  de  injuria  absque  residua  causes; 
thus:  "protesting  that  the  said  0.  D.  is  not  seized,  etc.,  for 
replication,  nevertheless,  in  this  behalf,  the  said  A.  B.  says  that 
the  said  C.  D.,  of  his  own  wrong,  and  without  the  residue  of 
the  cause  in  his  said  plea  alleged,  broke  and  entered  the  said 
close,  etc."  (n)  And  it  is  to  be  observed  that  this  restitution, 
by  which  matter  of  title,  interest,  authority,  or  record,  is  re- 
quired to  be  separately  traversed,  is  not  to  be  taken  as  appli- 
cable merely  to  the  use  of  the  replication  de  injuria,  but  extends 
(it  is  conceived),  in  its  principle,  to  all  cases  of  cumulative 

(fc)  Robison  v.  Rayley,  1  Burr.  316. 

(1)  Supra,  p.  288. 

(m)  Supra,  p.  288. 

(n)  See  the  precedents,  9  Went.  327;  2  Chitty,  644. 


§  183.]  BTJLES   TO    PRODUCE    SINGLENESS   OF    ISSUE.  355 

traverse ;  so  that  it  may  be  said  to  be  generally  true,  that 
where  any  such  matter  is  alleged  in  connection  with  other 
circumstances,  it  is  not  a  case  in  which  it  is  competent  to  the 
other  party  to  traverse  cumulatively ;  (0)  and  that  if  he  in- 
clude all  these  circumstances  in  the  same  traverse,  his  plead- 
ing will  be  double. 

§  183.  The  general  issue  as  construed  has  become  in 
truth  a  double  plea.1 —  In  some  cases  the  general  issues  ap- 
pear to  partake  of  the  nature  of  these  cumulative  traverses. 
For  some  of  them  are  so  framed  as  to  convey  a  denial,  not 
of  any  particular  fact,  but  generally  of  the  whole  matter  al- 
leged—  as  not  guilty,  in  trespass  or  trespass  on  the  case, 
and  nil  debet,  in  debt.  And  in  assumpsit  the  case  is  the  same 
in  effect,  according  to  a  relaxation  of  practice  formerly  ex- 
plained, (p)  by  which  the  defendant  is  permitted,  under  the 
general  issue,  in  that  action,  to  avail  himself  (with  some  few 
exceptions)  of  any  matter  tending  to  disprove  his  liability. 
The  consequence  is  that  under  these  general  issues  the  de- 
fendant has  the  advantage  of  disputing,  and  therefore  of  put- 
ting the  plaintiff  to  the  proof  of,  every  averment  in  the 
declaration.  Thus,  by  pleading  not  guilty  in  trespass  quare 
clausum  fregit,  he  is  enabled  to  deny  at  the  trial  both  that 
the  land  was  the  plaintiff's  and  that  he  committed  upon  it  the 
trespasses  in  question,  and  the  plaintiff  must  establish  both 
these  points  in  evidence.  Indeed,  besides  this  advantage  of 
double  denial,  the  defendant  obtains,  under  the  general  issue 
in  assumpsit  and  other  actions  of  trespass  on  the  case,  the  ad- 
vantage of  double  pleading  in  confession  and  avoidance.  For 
as,  upon  the  principles  formerly  explained,  (q)  he  is  allowed 
in  these  actions  to  bring  forward,  upon  the  general  issue, 
almost  any  matters  (though  in  the  nature  of  confession  and 
avoidance)  which  tend  to  disprove  his  debt  or  liability,  so  he 
is  not  limited  (as  he  would  be  in  special  pleading)  to  a  reliance 
on  any  single  matter  of  this  description,  but  may  set  up  any 
number  of  these  defenses.  While  such  is  the  effect  of  many 
of  the  general  issues  in  mitigating  or  evading  the  rule  against 
duplicity,  the  remark  does  not  apply  to  all.  Thus  the  general 

(o)  See  Bui.  Ni.  Pit  93. 

(p)  Supra,  p.  282. 

(fl)  Supra,  pp.  282,  284. 

1  See  General  Issue,  and  Wiley  v.  Rouse's  Point,  86  Hun,  495. 


356  BULES   TO   PRODUCE    SINGLENESS   OF   ISSUE.  [§  184. 

issue  of  non  est  factum  raises  only  a  single  question,  namely, 
whether  the  defendant  executed  a  valid  and  genuine  deed  such 
as  is  alleged  in  the  declaration.  The  defendant  may,  under 
this  plea,  insist  that  the  deed  was  not  executed  by  him,  or  that 
it  was  executed  under  circumstances  which  annul  its  effect  as 
a  deed,  but  can  set  up  no  other  kind  of  defense. 

§  184.  Of  several  counts  and  several  pleas. —  The  rule 
against  duplicity  in  pleading  being  now  explained,  (r)  it  is  nec- 
essary, in  the  next  place,  to  advert  to  certain  modes  of  practice 
by  which  the  effect  of  that  rule  is  materially  qualified  and 
evaded.  These  are  the  use  of  several  counts  and  the  allowance 
of  several  pleas ',  the  former  being  grounded  on  ancient  practice, 
the  latter  on  the  Stat.  4  Ann.,  ch.  16. 

Joinder  of  actions  —  Several  counts:  First  of  the  subject  of 
several  counts. 

Where  the  plaintiff  has  several  distinct  causes  of  action  he 
is  allowed  to  pursue  them  cumulatively  in  the  same  original 
writ,  subject  to  certain  rules  which  the  law  prescribes  as  to 
joining  such  demands  only  as  are  of  similar  quality  or  charac- 
ter, (s) l  Thus  he  may  join  a  claim  of  debt  on  bond  with  a 

(r)  See  Appendix,  note  (57) 

(s)  Upon  this  subject,  see  Bac.  Ab.,  Actions  (C). 

lrrregent  v.  May  bee,  54  Mich.  226;  joined.    T.,  W.    &   W.    Ry.   Co.   v. 

McKenzie  v.  Hatton,  59  N.  Y.  St.  R,  Building  Co.,  63  111.  308. 

695;  Gray  v.  Tobias,  17  Wend.  562;  The  codes  differ  in  their  provisions 

Nichols  v.  Drew,  94  N.  Y.  22;  Chip-  for  joining,  and  there  is  neither  har- 

man  v.  Palmer,  77  id.  51;  Gardner  mony  of  rules  or  decision.    In  Wis- 

v.  Ogden,  22  id.  327;  Cook  v.  War-  consin  the  actions  are  classified,  and, 

ren,  88  id.  37;  Ogdensburgh  Vk  Van  in  order  to  join,  all  must  belong  to 

Rensselaer,  6  Hill,  240.  one  of  these  classes,  must  affect  all 

The  general  principles  of  joinder  parties  and  be  stated  separately.  Gil- 
are  that  causes  of  action  of  the  same  bert  v.  Loberg,  83  Wis.  189.  The  New- 
nature  and  subject  to  the  same  char-  York  code  names  nine  divisions  and 
acter  of  defense  and  judgment,  even  requires  that  all  must  be  consistent 
if  the  pleas  are  different,  may  be  as  to  nature  and  parties.  Nichols  v. 
joined.  Lovett  v.  Pell,  22  Wend.  369;  Drew,  94  N.  Y.  22.  The  Connecticut 
C.  W.  D.  Ry.  Co.  v.  Ingraham,  131  111.  act  provides  that  "  several  causes  of 
659.  Except  by  statute  or  code,  tort  action  may  be  united  in  the  same 
and  contract  cannot  be  joined,  complaint  if  all  arise  upon  claims, 
Smith  v.  East  Tenn.,  V.  &  G.  Ry.  whether  in  tort  or  on  contract,  or 
Co.,  98  Ala.  154  And  actions  which  both,  arising  out  of  the  same  trans- 
are  repugnant  in  nature,  growing  action,  connected  with  the  same  sub- 
out  of  the  same  subject,  cannot  be  fat  of  action."  The  meaning  of  the 


§  184.]  KULES   TO   PRODUCE    SINGLENESS   OF   ISSUE.  357 

claim  of  debt  on  simple  contract,  and  pursue  his  remedy  for 
both  by  the  same  original  writ  in  debt.  So  if  several  distinct 
trespasses  have  been  committed,  these  may  all  form  the  sub- 
ject of  one  original  writ  in  trespass;  but,  on  the  other  hand,  a 
plaintiff  cannot  join  in  the  same  suit  a  claim  of  debt  on  bond 
and  a  complaint  of  trespass,  these  being  dissimilar  in  kind,  (t} 
"Where  a  plaintiff  thus  makes  several  demands  by  the  same 
writ,  his  course  of  proceeding  in  debt,  covenant  and  detinue, 
and  the  real  and  mixed  actions  (where  the  writs  are  in  a  simple 
and  general  form),  (u)  is  merely  to  enlarge  his  claim  in  point 
of  sums  and  quantities ;  but  in  trespass  and  trespass  on  the 
case  (where  the  form  is  more  special),  (a?)  the  ori^  nal  writ 
separately  specifies  each  subject  of  claim  or  complaint.  For 
example,  if  the  action  be  brought  in  trespass  for  two  assaults 
and  batteries,  the  original  writ,  after  setting  forth  one,  pro- 
ceeds to  detail  the  other. 

Each  cause  stated  separately r.1 —  And  when  the  time  for  the 
declaration  arrives,  the  plaintiff,  in  all  forms  of  action,  sets  forth 
in  the  declaration  separately  each  different  subject  of  claim  or 
complaint  thus  put  together  in  the  same  writ.  So,  in  the  case 
of  proceeding  by  bill,  the  different  claims  or  complaints  are 
separately  brought  forward  in  the  bill  or  declaration ;  care, 
however,  being  taken  to  join  only  such  as  might  have  been 
jointly  claimed  by  the  same  original.  Such  different  claims  or 
complaints  constitute  different  parts  or  sections  of  the  declara- 
tion, and  are  known  in  pleading  ty  the  description  of  several 
counts.  (y)z 

(t)  See  Appendix,  note  (58). 

(w)  See  the  forms  of  writs  in  the  first  chapter. 

(a;)  Ibid. 

(y)  See  Appendix,  note  (59). 

new  act  is  being  worked  out  in  the  2  Several  breaches  of  a  bond  or  sev- 
courts.  See  Craft  Refrig.  Co.  v.  Quin-  eral  instalments  due  on  a  contract 
nipiac  Brewing  Co.,  63  Conn.  851.  may  be  joined  in  one  count.  Con- 
Compare  Case  Arms  Co.  v.  N.  Y.  &  solidated  Coal  Co.  v.  Peers,  150  111. 
N.  H.  Ry.  Co.,  set  out  in  Appendix.  344;  Hibbard  v.  McKindley,  28  id. 
See  also  Hannay  v.  Smurthwait,  Ap-  240;  People  v.  Harmon,  15  111.  App. 
pendix.  189.  Several  breaches  of  one  con- 
1  This  rule  is  substantially  re-en-  tract  may  be  set  up  in  a  single  count, 
acted  by  the  code  provision  for  stat-  Fisk  v.  Tank,  12  Wis.  276. 
ing  the  causes  separately  and  num- 
bering them. 


358  ETJLES   TO   PRODUCE   SINGLENESS   OF   ISSUE.  [§  185. 

§  185.  Examples  of  several  counts,  —  But  in  order  to  give 
the  unlearned  rcadsr  an  exact  idea  of  the  nature  of  several 
counts,  it  will  be  necessary  (though  it  lead  to  the  insertion  of 
some  very  common  and  well-known  forms)  to  lay  before  him 
the  following  examples  : 

MODERN    COMPLAINT   FOR   ASSAULT   AND   BATTERY.1 

[Caption  and  title?  ~\ 

The  above  named  plaintiff,  by  --  ,  his  attorney,  com- 
plains of  the  defendant  above  named,  and  for  cause  of  action 
alleges  : 

1.  That  heretofore,  to  wit,  on  the  -  day  of  -  ,  19  —  ,  at 
-  ,  the  defendant  with  force  and  arms  assaulted  the  plaint- 
iff, and  beat,  bruised  and  wounded  him. 

2.  Whereby  the  plaintiff  was  made  sick,  lame  and  perma- 
nently injured,  and  rendered  unable  to  attend  to  his  business, 
and  obliged  to  pay  out  large  sums  in  endeavoring  to  be  cured, 
to  wit,  $  -  .     [Add  facts  showing  special  damages,  if  any.'] 

Wherefore  the  plaintiff  demands  judgment  [for  actual  dam- 
ages, for  punitive  damages,  for  costs,  for  special  damages]. 
\Verification.']  {Signature.] 


DECLARATION    IN   TRESPASS 

For  assault  and  battery. 

In  the  King's  Bench.  (By  original.) 

-  Term,  in  the  -  year  of  the  reign 
of  King  George  the  Fourth. 

-  to  wit,  C.  D.  was  attached  to  answer  A.  B.  of  a  plea 
wherefore  he,  the  said  C.  D.,  with  force  and  arms,  at  --  , 
in  the  county  of  -  ,  made  an  assault  upon  the  said  A.  B., 
and  beat,  wounded  and  ill-treated  him,  so  that  his  life  was 
despaired  of.3  And  also,  wherefore,  with  force  and  arms,  at 

—  aforesaid,  in  the  county  aforesaid,  the  said  C.  D.  made 
another  assault  upon  the  said  A.  B.,  and  again  beat,  wounded 
and  ill-treated  him,  so  that  his  life  was  despaired  of,  and  other 
wrongs  to  him  there  did,  to  the  damage  of  the  said  A.  B., 
and  against  the  peace  of  our  lord  the  now  king.  And  there- 
upon the  said  A.  B.,  by-  —  ,  his  attorney,  complains: 

For  that  the  said  C.  D.  heretofore,  to  wit,  on  the  -  day  of 

1  An  assault  may  be  unaccompa-  a  Bryant's  TVis.  Pr.,  p.  264. 

nied  by  battery,  in  which  case  the  3  This  is  the  first  count,  and  with 

allegation  of  violence  attempted  will  the   conclusion    makes  a  complete 

be  sufficient  without  the  striking,  declaration. 
etc.    Cooley,  Torts,  160-102. 


§  185.]  RULES   TO   PRODUCE   SINGLENESS   OF   ISSUE.  359 

,  in  the  year  of  our  Lord ,  with  force  and  arras,  at , 

in  the  county  of ,  made  an  assault  upon  the  said  A.  B.,  and 

beat,  wounded  and  ill-treated  him,  so  that  his  life  was  de- 
spaired of.  And  also  for  that  the  said  C.  D.  heretofore,  to 
wit,  on  the  day  and  year  aforesaid,  with  force  and  arms,  at 

aforesaid,  in  the  county  aforesaid,  made  another  assault 

upon  the  said  A.  B.,  and  again  beat,  wounded  and  ill-treated 
him,  so  that  his  life  was  despaired  of,  and  other  wrongs  to 
him  then  and  there  did,  against  the  peace  of  our  said  lord  the 

king,  and  to  the  damage  of  the  said  A.  B.  of pounds. 

And  therefore  he  brings  his  suit,  etc.  (z) 

DECLARATION 

In  Assumpsit. 
For  goods  sold,  work  done,  money  lent,  etc.1 

In  the  King's  Bench.  (By  original.) 

Term,  in  the year  of  the  reign 

of  King  George  the  Fourth. 

to  wit,  C.  D.  was  attached  to  answer  A.  B.  of  a  plea  of 

trespass  on  the  case.     And  thereupon  the  said  A.  B.,  by 

his  attorney,  complains :  For  that,  whereas  the  said  C.  D. 

heretofore,  to  wit,  on  the day  of ,  in  the  year  of  our 

Lord ,  at ,  in  the  county  of ,  was  indebted  to  the 

said  A.  B.  in  the  sum  of pounds  of  lawful  money  of  Great 

Britain,  for  divers  goods,  wares  and  merchandises  by  the  said 
A.  B.  before  that  time  sold  and  delivered  to  the  said  C.  D.  at 
his  special  instance  and  request;  and  being  so  indebted,  he, 
the  said  C.  D.,  in  consideration  thereof,  afterwards,  to  wit,  on 

the  day  and  year  aforesaid,  at aforesaid,  in  the  county 

aforesaid,  undertook  and  faithfully  promised  the  said  A.  B.  to 
pay  him  the  said  sum  of  money  when  he,  the  said  C.  D.,  should 
be  thereto  afterwards  requested.  And  whereas  also,  the  said 

C.  D.  afterwards,  to  wit,  on  the  day  and  year  aforesaid,  at 

aforesaid,  in  the  county  aforesaid,  was  indebted  to  the  said 

A.  B.  in  the  farther  sum  of pounds  of  like  lawful  money, 

for  work  and  labor,  care  and  diligence  by  the  said  A.  B.  before 
that  time  done,  performed  and  bestowed  in  and  about  the 
business  of  the  said  C.  D.,  and  for  the  said  C.  D.,  at  his  like 
instance  and  request ;  and  being  so  indebted,  he,  the  said  0.  D., 
in  consideration  thereof,  afterwards,  to  wit,  on  the  day  and 
year  aforesaid,  at aforesaid,  in  the  county  aforesaicl,  un- 
dertook and  faithfully  promised  the, said  A.  B.  to  pay  him  the 
said  last-mentioned  sum  of  money  when  he,  the  said  C.  D., 
should  be  thereto  afterwards  requested.  And  whereas  also, 

(z)  See  the  declaration  with  a  count  for  one  assault  and  battery  only,  supra,  p.  160. 
1  The  common  money  counts.     See  Common  Counts. 


360  RULES   TO   PKODTJCE    SINGLENESS    OF   ISSUE.  [§  180. 

the  said  C.  D.  afterwards,  to  wit,  on  the  da}r  and  year  afore- 
said, at aforesaid,  in  the  county  aforesaid,  was  indebted 

to  the  said  A.  B.  in  the  farther  sum  of pounds  of  like 

lawful  money,  for  so  much  money  by  the  said  A.  B.  before 
that  time  lent  and  advanced  to  the  said  C.  D.,  at  his  like  in- 
stance and  request;  and  being  so  indebted,  he,  the  said  C.  D., 
in  consideration  thereof,  afterwards,  to  wit,  on  the  day  and 
year  aforesaid,  at aforesaid,  in  the  county  aforesaid,  un- 
dertook and  faithfully  promised  the  said  A.  B.  to  pay  him  the 
said  last-mentioned  sum  of  money  when  he,  the  said  C.  D., 
should  be  thereto  afterwards  requested.  And  whereas  also, 
the  said  C.  D.  afterwards,  to  wit,  on  the  day  and  year  afore- 
said, at aforesaid,  in  the  county  aforesaid,  was  indebted 

to  the  said  A.  B.  in  the  farther  sum  of pounds  of  like  law- 
ful money,  for  so  much  money  by  the  said  A.  B.  before  that 
time  paid,  laid  out  and  expended  to  and  for  the  use  of  the  said 
C.  D.,  at  his  like  instance  and  request;  and  being  so  indebted, 
he,  the  said  C.  D.,  in  consideration  thereof,  afterwards,  to  wit, 

on  the  day  and  year  aforesaid,  at aforesaid,  in  the  county 

aforesaid,  undertook  and  faithfully  promised  the  said  A.  B. 
to  pay  him  the  said  last-mentioned  sum  of  money  when  he, 
the  said  C.  D.,  should  be  thereto  afterwards  requested.  And 
whereas  also,  the  said  C.  D.  afterwards,  to  vrit,  on  the  day  and 

year  aforesaid,  at  aforesaid,  in   the   county  aforesaid, 

was  indebted  to  the  said  A.  B.  in  the  farther  sum  of 

pounds  of  like  lawful  money,  for  so  much  money  by  the  said 
C.  D.  before  that  time  had  and  received  to  and  for  the 
use  of  the  said  A.  B. ;  and,  being  so  indebted,  he,  the  said 
C.  D.,  in  consideration  thereof,  afterwards,  to  wit,  on  the  day 

and  year  aforesaid,  at  aforesaid,  in  the  county  aforesaid, 

undertook  and  faithfully  promised  the  said  A.  B.  to  pay  him 
the  said  last-mentioned  sum  of  money  when  he,  the  said  C.  D., 
should  be  thereto  afterwards  requested.  And  whereas  also, 
the  said  C.  D.  afterwards,  to  wit,  on  the  day  and  year  afore- 
said, at aforesaid,  in  the  county  aforesaid,  accounted  with 

the  said  A.  B.  of  and  concerning  divers  other  sums  of  money 
from  the  said  C.  D.  to  the  said  A.  B.  before  that  time  due  and 
owing  and  then  in  arrear  and  unpaid ;  and  upon  that  account 
the  said  C.  D.  was  then  and  there  found  to  be  in  arrear  and 

indebted  to  the  said  A.  B.  in  the  farther  sum  of pounds  of 

like  lawful  money;  and  being  so  found  in  arrear  and  indebted, 
he,  the  said  C.  D.,  in  consideration  thereof,  afterwards,  to  wit, 

on  the  day  and  year  aforesaid,  at aforesaid,  in  the  county 

aforesaid,  undertook  and  faithfully  promised  the  said  A.  B.  to 
pay  him  the  said  last-mentioned  sum  of  money  when  he,  the 
said  C.  D.,  should  be  thereto  afterwards  requested.  Yet 
the  said  C.  D.,  not  regarding  his  said  several  promises  and  un 
dertakings,  but  contriving  and  fraudulently  intending,  craftily 
and  subtilly,  to  deceive  and  defraud  the  said  A.  B.  in  this  be' 


§  186.]  BULES   TO   PRODUCE   SINGLENESS   OF   ISSUE.  3G1 

half,  hath  not  yet  paid  the  said  several  sums  of  money,  or  any 
part  thereof,  to  the  said  A.  B.  (although  oftentimes  afterwards 
requested).  But  the  said  C.  I),  to  pay  the  same,  or  any  part 
thereof,  hath  hitherto  wholly  refused,  and  still  refuses,  to  the 

damage  of  the  said  A.  B.  of  pounds;  and  therefore  he 

brings  his  suit,  etc.  (a) 

"When  several  counts  are  thus  used  the  defendant  may,  ac- 
cording to  the  nature  of  his  defense,  demur  to  the  whole,  or 
plead  a  single  plea  applying  to  the  whole,  or  may  demur  to 
one  count  and  plead  to  another,  or  plead  a  several  plea  to  each 
count;  and  in  the  two  latter  cases  the  result  may  be  a  corre- 
sponding severance  in  the  subsequent  pleadings  and  the  pro- 
duction of  several  issues.1  But  whether  one  or  more  issues  be 
produced,  if  the  decision,  whether  in  law  or  fact,  be  in  the 
plaintiff's  favor  as  to  any  one  or  more  counts,  he  is  entitled  to 
judgment  pro  tanto  though  he  fail  as  to  the  remainder. 

§  186.  Several  counts  for  a  single  cause. —  The  use  of  sev- 
eral counts,  when  applied  to  distinct  causes  of  action,  is  quite 
consistent  with  the  rule  against  duplicity;  for  the  object  of 
that  rule,  as  formerly  explained,  (5)  is  to  prevent  several  issues 
in  respect  of  the  same  demand  only ;  there  being  no  objection 
to  several  issues  where  the  demands  are  several.  But  it  hap- 
pens more  frequently  than  otherwise  that  when  various  counts 
are  introduced  they  do  not  really  relate  to  distinct  claims,  but 
are  adopted  merely  as  so  many  different  forms  of  propounding 
the  same  cause  of  action,  and  are  therefore  a  mere  evasion  of 
the  rule  against  duplicity.2  This  is  a  relaxation  of  very 
ancient  date,  and  has  long  since  passed,  by  continual  suffer- 
ance, into  allowable  and  regular  practice.  It  takes  place  when 
the  pleader,  in  drawing  the  declaration  or  bill  in  any  action, 
or  in  preparing  the  prcecipe  (c}  for  an  original  writ  in  trespass 
or  trespass  on  the  case,  after  having  set  forth  his  case  in 
one  view,  feels  doubtful  whether  as  so  stated  it  may  not  be 
insufficient  in  point  of  law,  or  incapable  of  proof  in  point 
of  fact,  and  at  the  same  time  perceives  another  mode  of 
statement  by  which  the  apprehended  difficulty  may  probably 

(a)  See  the  declaration  in  assumpsit,  with  a  count  for  goods  sold  only,  supra,  p.  163. 

(b)  Supra,  p.  348. 

(c)  As  to  the  proecipe,  vide  supra,  p.  144. 

1  Gould's  Pleading  (5th  ed.),  391;  count  for  breach  of  contract.     York 
Hopkins  v.  Medley,  97  111.  402.  Mfg.   Co.  v.  Bessemer  Ice  Co..  Ill 

2  In  sucli  cases  the  plaintiff  may  Ala.  333. 
unite  common  counts  and  a  special 


362  EULES   TO    PRODUCE   SINGLENESS    OF   ISSUE.  [§  187. 

be  avoided.  Not  choosing  to  rely  on.  either  view  of  the  case 
exclusively,  he  takes  the  course  of  adopting  both ;  and  accord- 
ingly inserts  the  second  form  of  statement  in  the  shape  of  a 
second  count,  in  the  same  manner  as  if  he  were  proceeding  for 
a  separate  cause  of  action.  If,  upon  the  same  principle,  he 
wishes  to  vary  still  farther  the  method  of  allegation,  he  may 
find  it  necessary  to  add  many  other  succeeding  counts  besides 
the  second ;  and  thus  in  practice  a  great  variety  of  counts  often 
occurs  in  respect  of  the  same  cause  of  action,  the  law  not  hav- 
ing set  any  limits  to  the  discretion  of  the  pleader  in  this  re- 
spect, if  fairly  and  rationally  exercised.1 

§  187.  Common  counts  for  one  cause  of  action. —  It  may 
be  desirable,  however,  to  explain  more  particularly  in  what 
case,  and  with  what  objects,  resort  is  had  to  several  counts  in 
respect  of  the  same  cause  of  action.  This  may  happen  either 
where  the  state  of  facts  to  which  each  count  refers  is  really 
different,  or  where  the  same  state  of  facts  is  differently  repre- 
sented. The  first  case  may  be  exemplified  in  the  instance 
formerly  cited,  of  an  action  of  debt  on  a  penal  bill,  whereby 
the  defendant  engaged  to  pay  11.  as  penalty  in  the  event  of 
non-payment  of  10s.  on  the  llth  of  June,  and  10s.  more  on  the 
10th  of  July,  and  10s.  every  three  weeks  after  till  a  certain 
sum  were  satisfied.  Let  it  be  supposed  that  the  plaintiff  com- 
plains of  a  failure  in  payment  both  on  the  llth  of  June  and 
10th  of  July.  Either  failure  entitles  him  to  the  penal  sum 
for  which  he  brings  the  action ;  but  if  he  states  them  both  in 
the  same  count,  the  declaration,  as  we  have  seen,  will  be 
double,  (d)  The  case,  however,  may  be  such  as  to  make  it 

(d)  Supra,  pp.  348,  349. 

1  The  use  of  several  counts  in  cases  Dec.  582,  states  the  law  practically 

where  there  is  but  one  cause  of  ac-  as  it  stood  prior  to  1885,  but  this  idea 

tion  is  so  common  that  it  need  not  has  given  way  to  the  necessities  and 

be  illustrated  further  than  the  cases  conveniences  of  the  profession,  and 

we  cite  from  the  code  states  serve  in  many  states  they  have  returned 

that  purpose.    It  was  supposed  that  to  the  common-law  rule.    The  court 

in  accordance  with  the  theory  that  exercises  a  sound  discretion  against 

no  fictions  could  be  indulged  in  code  unnecessary  prolixity.    Pearson  v. 

pleading,  a  party  could  not  be  per-  M.  &  St.  P.  Ry.,  45  la.  497;  Brink- 

mitted  to  state  his  cause  in  several  man  v.  Hunter,  73  Mo.  172;  Whitney 

forms,  and  if  there  was   but  one  v.  C.  &  N.  W.  Ry.,  27'Wis.  327;  Wil- 

cause  there  could  be  but  one  count,  son  v.  Saltiel,  61  Cal.  209;  Leonard 

Sturgis  v.   Burton,  8  Ohio  St.  215.  v.  Roberts,  20  Colo.  88.     Of.  Jansen 

The  note  to  that  case  in  72  American  v.  Railway  Co.,  6  Utah,  253. 


§  187.]  BULES   TO   PRODUCE   SINGLENESS    OF   ISSUE.  363 

convenient  to  rely  on  both  defaults ;  for  there  may  be  a  doubt 
whether  one  or  other  of  the  payments  were  not  made,  though 
it  may  be  certain  that  there  was  at  least  one  default;  and  if, 
under  these  circumstances,  the  plaintiff  should  set  forth  one 
of  the  defaults,  and  the  defendant  should  take  issue  upon  it, 
he  might  defeat  the  action  by  proving  payment  on  the  day 
alleged,  though  he  would  have  been  unable  to  prove  the  other 
payment.  To  meet  this  difficulty  the  pleader  might  resort  to 
two  counts.  The  first  of  these  would  set  forth  the  penal  bill, 
alleging  a  default  of  payment  on  the  llth  of  June ;  the  second 
would  again  set  forth  the  same  bill,  describing  it  as  "  a  certain 
other  bill,"  etc.,  and  would  allege  a  default  on  the  10th  of  July. 
The  effect  of  this  would  be  that  the  plaintiff,  at  the  trial,  might 
rely  on  either  default,  as  he  might  then  find  convenient.  In 
this  instance  the  several  counts  are  each  founded  on  a  differ- 
ent state  of  facts  (viz.,  a  different  default  in  payment),  though 
in  support  of  the  same  demand ;  but  it  more  frequently  hap- 
pens that  it  is  the  same  state  of  facts  differently  represented 
which  forms  the  subject  of  different  counts.  Thus,  where  a 
man  has  ordered  goods  of  another,  and  an  action  is  brought 
against  him  for  the  price,  the  circumstances  may  be  conceived 
to  be  such  as  to  raise  a  doubt  whether  the  transaction  ought 
to  be  described  as  one  of  goods  sold  and  delivered,  or  of  work 
and  labor  done;  and  in  this  case  there  would  be  two  counts 
setting  forth  the  claim  both  ways,  exactly  as  in  the  two  first 
counts  of  the  last  example,  in  order  to  secure  a  verdict,  at  all 
events,  upon  one  of  them.1  And  it  may  be  useful  to  observe4 

1  In  Gorman  v.  Judge,  27  Mich.  138,  goes,  the  fact  that  the  causes  of  ac- 

and  Fish  v.  Farwell,  160  111.  236,  it  tion  relied  upon  are  identical  will  not 

was  held  that  the  common  counts  in  outweigh  the  necessity  of  adhering 

assumpsit  and  a  special  count  on  a  to  the  theory  adopted  or  changed  by 

specific  contract  were  on  different  amendment    within   the    statutory 

causes  of  action ;  and  that  while  it  time. 

was  proper  to  state  the  same  trans-       The  law  upon  this  subject  is  laid 

action  in  both  ways,  if  one  count  down  in  Moulton  v.  Trask,  9  Met.  577, 

was  filed  after  the  period  of  the  stat-  as  follows:  "  When  a  special  contract 

ute  of  limitation  in  such  a  case  had  is  open   and    unexecuted   and   the 

run,  the  action  could  not  be  saved  plaintiff  proceeds  for  a  breach  of  it, 

by  the  fiction  relating  back  to  the  he  must  declare  specially  and  set  it 

date  of  the  original  declaration.    It  out  and  aver  a  breach.    But  when  a 

follows  that,  so  far  as  the  pleading  contract  is  at  an  end,  either  by  its 


364:  BULES    TO    PRODUCE    SINGLENESS    OF    ISSUE.  [§  188. 

here,  that  upon  this  principle  the  four  last  counts  of  that 
example,  viz.,  those  for  money  lent  and  advanced,  money  paid, 
money  had  and  received,  and  money  due  on  an  account  stated 
(commonly  called  the  money  counts}?  are,  some  or  all  of  them, 
generally  inserted,  as  a  matter  of  course,  in  every  prcecipe, 
declaration,  or  bill  in  assumpsit,  though  the  cause  of  action  be 
also  stated  in  a  more  special  form  in  other  counts.  This  is 
done  because  it  often  happens  that,  when  the  special  counts 
are  found  incapable  of  proof  at  the  trial,  the  cause  of  ac- 
tion will  resolve  itself  into  one  of  these  general  pecuniary 
forms  of  demand,  and  thus  the  plaintiff  may  obtain  a  verdict 
on  one  of  these  money  counts  though  he  fail  as  to  all  the  rest.2 
Again,  the  same  state  of  facts  may  be  varied  by  omitting  in 
one  count  some  matter  stated  in  another.  In  such  a  case  the 
more  special  count  is  used,  lest  the  omission  of  this  matter 
should  render  the  other  insufficient  in  point  of  law;  the  more 
general  count  is  adopted  because  if  good  in  point  of  law  it 
will  relieve  the  plaintiff  from  the  necessity  of  proving  such 
omitted  matter  in  point  of  fact.  If  the  defendant  demur  to 
the  latter  count  as  insufficient,  and  take  issue  in  fact  on  the 
former,  the  plaintiff  has  the  chance  of  proving  the  matter 
alleged  and  also  the  chance  of  succeeding  on  the  demurrer. 
If,  on  the  other  hand,  the  defendant  do  not  think  proper  to 
demur,  but  take  issue  in  fact  on  both,  the  plaintiff  will  have  no 

own  original  terms,  or  by  the  subse-  is  also  admitted.  The  idea  of  a  single 

quent  consent  of  the  parties,  or  by  statement  of  a  single  cause  is  well 

the  unjustifiable  acts  of  the  defend-  enough  in  theory;  but  every  practic- 

ant,  and  nothing  remains  but  to  pay  ing  lawyer  knows  of  the  difficulty  of 

money,  indebitatus  assumpsit  will  lie  stating  a  cause  which  will  fit  his  evi- 

although  the  debt  accrued  under  a  dence  and  at  the  same  time  embrace 

special  contract,  and  such  special  the  modifying  effect  of  the  evidence 

contract  may  be  proper  and  neces-  for  the  defendant.    It  is  often  diffi- 

sary  evidence  in  support  of  the  ac-  cult  to  anticipate  how  court  and  jury 

tion."    Wolf  v.  Sc'hlacks,  67  111.  App.  will  construe  the  evidence  which 

117.  must  be    adduced    but    cannot    be 

1  These  are  the  common  counts,  pleaded.    The  practical  good  sense 
See  index,  Common  Counts.  of  the  profession  has  overcome  the 

2  There  can  be  no  doubt  as  to  the  theoretical  idea.    Solomon  v.  Vinson, 
applk'-ation  of  these  rules  in  the  code  31  Minn.  205;  Culver  v.  Marks,  122 
states.     The   use    of    the    common  Ind.  554,  17  Am.  St.  R.  377;  Baltzell 
count  is  too  firmly  established,  and  v.  Nosier,  1  la.  588,  63  Am.  Dec.  466; 
the  right  to  vary  the  form  of  state-  Fisk  v.   Fink,   12  Wis.  276,  78  Am. 
meat  in  order  to  prevent  a  variance  Dec.  737. 


§  188.]  RULES   TO   PKODUCE    SINGLENESS   OF   ISSUE.  365 

occasion,  at  the  trial,  to  rely  at  all  upon  the  former  count,  but 
will  succeed  by  merely  proving  the  latter. 

It  is  to  be  observed  that  whether  the  subjects  of  several 
counts  be  really  distinct  or  identical  they  must  always  purport 
to  be  founded  on  distinct  causes  of  action  and  not  to  refer  to 
the  same  matter;  and  this  is  effected  by  the  insertion  of  such 
words  as  "other,"  "the  farther  sum,"  etc.,  as  in  the  above 
examples.  This  is  evidently  rendered  necessary  by  the  rule 
against  duplicity,  which,  though  evaded  as  to  the  declaration 
by  the  use  of  several  counts  in  the  manner  here  described,  is 
not  to  be  directly  violated,  (e)  l 

§  188.  Of  several  pleas.—  The  next  subject  for  consideration 
is  that  of  several  pleas. 

It  has  been  already  stated  that  the  rule  against  duplicity 
does  not  prevent  a  defendant  from  giving  distinct  answers  to 
different  claims  or  complaints  on  the  part  of  the  plaintiff,  (f) 
To  several  counts,  or  to  distinct  parts  of  the  same  count,  he 
may  therefore  plead  several  pleas,  viz. :  one  to  each.  Thus, 
in  an  action  of  trespass  for  two  assaults  and  batteries,  he  may 
plead,  as  to  the  first  count,  not  guilty,  and  as  to  the  second, 
the  statute  of  limitations,  viz. :  that  he  was  not  guilty  within 
four  years;  and  the  following  is  an  example  of  the  form  in 
which  this  may  be  done:2 

Examples  of  Pleas. 

PLEA    IN   TRESPASS   FOR   ASSAULT   AND   BATTERY.  ( g) 

And  the  said  C.  D.,  by ,  his  attorney,  comes  and 

defends  the  force  and  injury  when,  etc.;  and  as  to  the  first 
count  of  the  said  declaration,  the  said  C.  D.  says  that  he  is  not 
guilty  of  the  said  trespasses  therein  mentioned,  or  any  part 

(e)  Hart  v.  Longfleld,  7  Mod.  148;  West  v.  Troles,  1  Salk.  213;  Bac.  Ab.,  Pleas,  etc.  (B.). 

(/)  Supra,  p.  361. 

(g)  See  the  declaration,  supra,  p.  358. 

1  Supra,  %  184.  Ulmer,  74  Pa.   St   402;   Watriss  v. 

2  The  privilege  of  several  pleas  is  Pierce,  36  N.  H.  236;  Blake  v.  Eldred, 
even  now  not  absolute,  but  to  be  ex-  18  How.  Pr.  240;  Montague  v.  Bos- 
ercised  under  sound  judicial  discre-  ton,  etc.  Iron  Works,  97  Mass.  502; 
tion.    Curtiss  v.  Martin,  20  III  557-  Jackson  v.  Stetson,  15  Mass.  48.    See 
571;    Miliken  v.  Jones,  77  id.  372;  next  page. 

Bell  v.  Brown,  22  CaL  671;  Peters  v. 
24 


366  RULES   TO    PRODUCE    SINGLENESS    OF    ISSUE.  [§  188. 

thereof,  in  manner  and  form  as  the  said  A.  B.  hath  above 
thereof  complained.  And  of  this  the  said  C.  D.  puts  himself 
upon  the  country.  And  as  to  the  second  count  of  the  said  dec- 
laration, the  said  C.  D.  says  that  the  said  A.  B.  ought  not  to 
have,  or  maintain  his  aforesaid  action  thereof  against  him,  be- 
cause he  says  that  he,  the  said  C.  D.,  was  not  at  any  time 
within  four  years  next  before  the  commencement  of  this  suit, 
guilty  of  the  said  trespasses  in  the  said  second  count  men- 
tioned, or  any  part  thereof,  in  manner  and  form  as  the  said 
A.  R  hath  above  complained.  And  this  the  said  C.  D.  is 
ready  to  verify.  Wherefore  he  prays  judgment  if  the  said 
A.  B.  ought  to  have  or  maintain  his  aforesaid  action  thereof 
against  him. 

But  it  may  also  happen  that  a  defendant  may  have  several 
distinct  answers  to  give  to  the  same  claim  or  complaint.  Thus, 
to  an  action  of  trespass  for  two  assaults  and  batteries,  he  may 
have  ground  to  deny  both  the  trespasses,  and  also  to  allege 
that  they  were  neither  of  them  committed  within  four  years. 
Anterior,  however,  to  the  regulation  which  will  be  presently 
mentioned,  it  was  not  competent  to  him  to  plead  these  sev- 
eral answers  to  both  trespasses,  as  that  would  have  been  an 
infringement  of  the  rule  against  duplicity.  The  defendant  was 
therefore  obliged  to  elect  between  his  different  defenses,  where 
more  than  one  thus  happened  to  present  themselves;  and  to 
rely  on  that  which,  in  point  of  law  and  fact,  he  might  deem 
most  impregnable.1  But  as  a  mistake  in  that  selection  might 
occasion  the  loss  of  the  cause,  contrary  to  the  real  merits  of 
the  case,  this  restriction  against  the  use  of  several  pleas  to  the 
same  matter,  after  being  for  ages  observed  in  its  original  sever- 
ity, was  at  length  considered  as  contrary  to  the  true  principles 
of  justice,  and  was  accordingly  relaxed  by  legislative  enact- 
ment. The  Stat.  4  Ann,  ch.  16,  sec.  4,  provides  that  "it  shall 
be  lawful  for  any  defendant  or  tenant,  in  any  action  or  suit,  or 
for  any  plaintiff  in  replevin,  in  any  court  of  record,  with  leave 
of  the  court,2  to  plead  as  many  several  matters  thereto  as  he 
shall  think  necessary  for  his  defense."3  Since  this  act  the 

1  See  Auburn  &  O.  Canal  Co.  v.  ginia  statute  of  1777,  is  a  re-enact- 
Leitch,  4  Den.  65,  Ames'  Cases,  31.  ment  of  this  statute  of  Anne,  omit- 

2  Omitted   in    later    English    and  ting  the  italicised  words  (1  Va.  Law 
American  statutes.  Reg.  388);  and  in  most  of  the  states 

3 The  Illinois  practice  act,  which  is  the  defendant  may  plead  as  many 
in  this  particular  a  copy  of  a  Vir-  matters  of  fact  as  he  sees  fit,  subject 


§  188.]  EULES   TO   PRODUCE    SINGLENESS    OF    ISSUE.  367 

course  has  been,  for  the  defendant,  if  he  wishes  to  plead  sev- 
eral matters  to  the  same  subject  of  demand  or  complaint,  to 
apply  previously  for  a  rule  of  court  permitting  him  to  do  so; 
and  upon  this,  a  rule  is  accordingly  drawn  up  for  that  purpose. 
The  form  of  pleading  several  pleas  where  leave  is  thus  granted 
will  appear  by  the  following  example: 

PLEA    IN   TRESPASS   FOR   ASSAULT   AND   BATTERY.  (A) 

And  the  said  C.  D.,  by ,  his  attorney,  comes  and 

-defends  the  force  and  injury  when,  etc.,  and  says  that  he  is  not 
guilty  of  the  said  trespasses  above  laid  to  his  charge,  or  any 
part  thereof,  in  manner  and  form  as  the  said  A.  B.  hath  above 
thereof  complained.  And  of  this  the  said  C.  D.  puts  himself 
upon  the  country.  And  for  a  farther  plea  in  this  behalf,  the 
said  C.  D.,  by  leave  of  the  court  here  for  this  purpose  first  had 
.and  obtained,  according  to  the  form  of  the  statute  in  such  case 
made  and  provided,  says  that  the  said  A.  B.  ought  not  to  have 
or  maintain  his  aforesaid  action  against  him,  because  he  says 
that  he,  the  said  C.  D.,  was  not,  at  any  time  within  four  years 
next  before  the  commencement  of  this  suit,  guilty  of  the  said 
trespasses  in  the  said  declaration  mentioned,  or  any  part  thereof, 
in  manner  and  form  as  the  said  A.  B.  hath  above  complained. 
And  this  the  said  C.  D.  is  ready  to  verify.  Wherefore  he  prays 
judgment  if  the  said  A.  B.  ought  to  have  or  maintain  his  afore- 
said action  against  him. 

When  several  pleas  are  pleaded,  either  to  different  matters, 
as  in  page  365,  or  (by  virtue  of  the  statute  of  Anne)  to  the 
same  matter,  as  in  t be  last  example,  the  plaintiff  may,  accord- 
ing to  the  nature  of  his  case,  either  demur  to  the  whole,  or 
demur  to  one  plea  and  reply  to  the  other,  or  make  a  several 
replication  to  each  plea ;  and  in  the  two  latter  cases  the  result 

(/i)  See  the  declaration,  supra,  p.  358. 

only  to  the  discretion  of  the  court  to  construed  either  way.    Seattle  Bank 

control  the  use  of  inconsistent  pleas,  v.  Carter  (Wash.),  43  Pac.  R.  331.    In 

Ante,  p.  365,  note.   Inconsistent  pleas  this  case  it  is  said  that  Professor 

cannot   be    ignored    or    treated    as  Pomeroy  had  misconceived  the  rule 

counteracting  each  other.    The  rem-  and  stated  it  too  narrowly.     If  so, 

«dy  is  to  appeal  to  the  court  by  mo-  there  is  no  practical  difference  be- 

tion  to  compel  an  election  of  one  of  tween  the  code  and  modern  practice 

several  inconsistent  pleas;  and  it  is  act  rule.     See  Supply  Ditch  Co.  v. 

for  the  court  to  decide  whether  it  Elcott,  10  Colo.  327,  3  Am.  St.  R.  586, 

is  possible  that  both  may  be  true,  48  L.  R.  A.  177,  note, 
or  that  the  circumstances  may  be 


368  BULES   TO    PRODUCE    SINGLENESS    OF   ISSUE.  [§  188. 

may  be  a  corresponding  severance  in  the  subsequent  plead- 
ings and  the  production  of  several  issues.  But  whether  one 
or  more  issues  be  produced,  if  the  decision,  whether  in  law  or 
fact,  be  in  the  defendant's  favor  as  to  any  one  or  more  pleas, 
he  is  entitled  to  judgment,  though  he  fail  as  to  the  remainder; 
i.  e.,  he  is  entitled  to  judgment  in  respect  of  that  subject  of 
demand  or  complaint  to  which  the  successful  plea  relates; 
and,  if  it  were  pleaded  to  the  whole  declaration,  to  judgment 
generall}1",  though  the  plaintiff  should  succeed  as  to  all  the 
other  pleas. 

By  a  relaxation  similar  to  that  which  has  obtained  with  re- 
spect to  several  counts,  the  use  of  several  pleas  (though  presum- 
ably intended  by  the  statute  to  be  allowed  only  in  a  case 
where  there  are  really  several  grounds  of  defense)  (i)  is,  in 
practice,  carried  much  farther.  For  it  was  soon  found  that 
when  there  was  a  matter  of  defense  by  way  of  special  plea, 
it  was  generally  expedient  to  plead  that  matter  in  company 
with  the  general  issue,  whether  there  were  any  real  ground 
for  denying  the  declaration  or  not;  because  the  effect  of  this 
is  to  put  the  plaintiff  to  the  proof  of  his  declaration  before  it 
can  become  necessary  for  the  defendant  to  establish  his  spe- 
cial plea;  and  thus  the  defendant  has  the  chance  of  succeed- 
ing, not  only  on  the  strength  of  his  own  case,  but  by  the  fail- 
ure of  the  plaintiff's  proof.1  Again,  as  the  plaintiff,  in  the 
case  of  several  counts,  finds  it  convenient  to  vary  the  mode 
of  stating  the  same  subject  of  claim,  so,  for  similar  reasons, 
defendants  were  led,  under  color  of  pleading  distinct  matters 
of  defense,  to  state  variously  in  various  pleas  the  same  de- 
fense; and  this,  either  by  presenting  it  in  an  entirely  new 
view,  or  by  omitting,  in  one  plea,  some  circumstances  alleged 
in  another.  To  this  extent,  therefore,  is  the  use  of  several 
pleas  now  carried;  and,  accordingly,  the  form  of  pleading,  in 
the  last  of  the  above  examples,  would  in  practice  be  adopted, 

(i)  See  Lord  Clinton  v.  Morton,  2  Str.  1000. 

i  Under  the  statutes  allowing  sev-  the  general  issue  and  special  pleas, 

eral  pleas,  or  the  general  issue  with  or  the  general  issue  and  notice,  but 

notice  of  special  matter,  which  are  he  may  not  combine  notice  with  spe- 

substantial  re-enactments  of  the  stat-  cial  pleas.    Gilmore  v.  Nowland,  26 

utes  of  Anne  (omitting  "  by  leave  of  III  200. 
court"),  the  defendant  may  plead 


§  188.]  BULKS    TO   PRODUCE    SINGLENESS    OF   ISSUE.  369 

instead  of  that  in  the  first,  whether  the  truth  of  the  case 
really  warrants  a  denial  of  both  counts  or  not.  Some  efforts, 
however,  were  at  one  time  made  to  restrain  this  apparent 
abuse  of  the  indulgence  given  b}7  the  statute.  For  that  leave 
of  the  court  which  the  statute  requires  was  formerly  often  re- 
fused where  the  proposed  subjects  of  plea  appeared  to  be  in- 
consistent; and  on  this  ground  leave  has  been  refused  to  plead, 
to  the  same  trespass,  not  guilty,  and  accord  and  satisfaction,  or 
non  estfactum  and  payment  to  the  same  demand.  (&)  In  mod- 
ern practice,  however,  such  pleas,  notwithstanding  the  appar- 
ent repugnancy  between  them,  are  permitted ;  (7) '  and  the 
only  pleas,  perhaps,  which  are  now  disallowed  on  the  mere 
ground  of  inconsistency  are  those  of  the  general  issue  and  a 
tender? 

Several  replications. —  On  the  subject  of  several  pleas  it  is  to 
be  farther  observed  that  the  statute  extends  to  the  case  of 
pleas  only  and  not  to  replications  or  subsequent  pleadings. 
These  remain  subject  to  the  full  operation  of  the  common  law 
against  duplicity,  so  that  though  to  each  plea  there  may  (as 
already  stated)  be  a  separate  replication,  (772-)  yet  there  cannot 
be  offered  to  the  same  plea  more  than  a  single  replication,  nor 
to  the  same  replication  more  than  one  rejoinder,  and  so  to 
the  end  of  the  series.3  The  legislative  provision  allowing  sev- 
eral matters  of  plea  was  confined  to  that  case  under  the  im- 
pression, probably,  that  it  was  in  that  part  of  the  pleading 
that  the  hardship  of  the  rule  against  duplicity  was  most  seri- 
ously and  frequently  felt,  and  that  the  multiplicity  of  issues 
which  would  be  occasioned  by  a  farther  extension  of  the  enact- 
ment would  have  been  attended  with  expense  and  inconven- 
ience more  than  equivalent  to  the  advantage.  The  effect,  how- 

(fc)  Com.  Dig.,  Pleader  (E.  2). 

(I)  Vide  1  SeL  Pract.  299;  2  Chitty,  608;  Chitty  T.  Hume,  13  East,  255. 

(m)  Supra,  p.  367. 

1  See  cases  cited  supra,  p.  365;  also  8This  is  now  changed  by  statute, 
Buhler  v.  Wentworth,  17  Barb.  649.  allowing     several    replications    by 

2  Tender  with  denial  not  allowable  leave  of  court.    The  practice  is  to 
under  code.    Supply  Ditch  Co.  v.  El-  apply  for  leave  to  reply  double,  no 
oott,  10  Cola  327,  3  Am.  St.  R  586.  matter  how  many  replications  are 
Obiter,  contrary  to  text,  Farnan  v.  desired. 

Childs,  66  III  544 


RULES   TO    PRODUCE    SINGLENESS    OF   ISSUE.  [§  189. 

ever,  of  this  state  of  law  is  somewhat  remarkable.  For  ex- 
ample: It  empowers  a  defendant  to  plead  to  a  declaration  in. 
assumpsit  for  goods  sold  and  delivered,  1,  the  general  issue; 

2,  that  the  cause  of  action  did  not  accrue  within  six  years; 

3,  that  he  was  an  infant  at  the  time  of  the  contract.     On  the 
first  plea  the  plaintiff  has  only  to  join  issue,  but  with  respect 
to  each  of  the  two  last  he  may  have  several  answers  to  give. 
The  case  may  be  such  as  to  afford  either  of  these  replications 
to  the  statute  of  limitations,  viz.,  that  the  cause  of  action  did 
accrue  within  six  years,  or  that  at  the  time  the  cause  of  action 
accrued  he  was  beyond  sea,  and  that  he  commenced  his  suit 
within  six  years  after  his  return.     So,  to  the  plea  of  infancy: 
he  may  have  ground  for  replying  either  that  the  defendant  was 
not  an  infant,  or  that  the  goods  for  which  the  action  is  brought 
were  necessaries  suitable  to  the  defendant's  condition  in  life. 
Yet,  though  the  defendant  had  the  advantage  of  his  three  pleas, 
cumulatively,  the  plaintiff  is  obliged  to  make  his  election  be- 
tween these  several  answers,  and  can  reply  but  one  of  them  to 
each  plea.1 

§  189.  Limitation  of  rule. —  It  is  also  to  be  observed  that 
the  power  of  pleading  several  matters  extends  to  pleas  in  "bar 
only,  and  not  to  those  of  the  dilatory  class,  with  respect  to 
which  the  leave  of  the  court  will  not  be  granted,  (n) 

Again,  it  is  to  be  remarked  that  the  statute  does  not  oper- 
ate as  a  total  abrogation,  even  with  respect  to  pleas  in  bar,  of 
the  rule  against  duplicity.  For,  first,  it  is  necessary  (as  we 
have  seen)  to  obtain  the  leave  of  the  court 2  to  make  use  of 
several  matters  of  defense,  and  then  the  several  matters  are 
pleaded  formally  with  the  words,  "  by  leave  of  the  court  for 
this  purpose  first  had  and  obtained,"  in  the  manner  shown 

(n)  See  1  SeL  Pract.  275. 

1  Every  plea  must  stand  or  fall  by  pleadings.    Bartlett  v.  Prescott,  41 

itself.    Grills  v.  Mannell,  Willes,  378 ;  N.  H.  493.    See,  also,  Nye  v.  Spencer, 

Potter  v.  Earnest,  45  Ind.  416.    Each  41  Me.  272 ;  Alderman  v.  French,  1 

plea  and  pleading  stands  on  its  own  Pick.  1,  11  Am.  Dec.  114;  Hunter  v. 

ground,  and  is  not  affected  by  any  Bilyeu,  39  111.  367. 
other  plea ;  and  the  admissions  made        2  If  the  plaintiff  files  replications 

in  pleading  one  plea,  or  found  in  one  improperly  without  leave,  the  proper 

lot  of  pleadings,  cannot  be  used  as  practice  is  to  move  to  strike  them 

cause  of  demurrer  or  as  matter  of  from  the  files.     Miliken  v.  Jones,  77 

evidence  in  issues  joined  in  other  111.  372. 


§  190.]  RULES   TO   PRODUCE    SINGLENESS   OP   ISSUE.  371 

in  the  example.  (0)  The  several  defenses  must  also  each 
be  pleaded  as  a  new  or  farther  plea,  with  a  formal  commence- 
ment and  conclusion  as  such;  so  that  notwithstanding  the 
statute,  and  the  leave  of  the  court  obtained  in  pursuance  of 
it,  to  plead  several  matters,  it  would  still  be  improper  to  in- 
corporate several  matters  in  one  plea  in  any  case  in  which  the 
plea  would  be  thereby  rendered  double  at  common  law. 

Such  is  the  nature  and  extent  of  the  rule  against  double 
pleading  and  of  the  modifications  to  which  in  practice  it  is 
subject.  Under  this  rule  it  remains  only  to  observe  that  if, 
instead  of  demurring  for  duplicity,  the  opposite  party  passes 
the  fault  by  and  pleads  over,  he  is  in  that  case  bound  to  an- 
swer each  matter  alleged,  and  has  no  right,  on  the  ground  of 
the  duplicity,  to  confine  himself  to  any  single  part  of  the  ad- 
verse statement,  (p) 

RULE  IL 

§  190.  It  is  not  allowable  both  to  plead  and  to  demur  to 
the  same  matter.  (qY  — 

This  rule  depends  on  exactly  the  same  principles  as  the  last. 
As  it  is  not  allowable  to  plead  double,  lest  several  issues  in  fact 
in  respect  of  the  same  matter  should  arise,  so  it  is  not  per- 
mitted both  to  plead  and  demur  to  the  same  matter,  lest  an  issue 
in  fact  and  an  issue  in  law  in  respect  of  a  single  subject  should 
be  produced.  The  party  must  therefore  make  his  election. 

The  rule,  however,  it  will  be  observed,  only  prohibits  the 
pleading  and  demurring  to  the  same  matter.  It  does  not  for- 
bid this  course  as  applicable  to  distinct  statements.  Thus  a 
man  ma}T  plead  to  one  count  or  one  plea  and  demur  to  an- 
other.2 The  reason  of  this  distinction  is  sufficiently  explained 
by  the  remarks  already  made  on  the  subject  of  duplicity  in 
pleading. 

Lastly,  it  is  to  be  remarked  that  the  statute  of  Anne,  which 
authorizes  the  pleading  of  several  pleas,  gives  no  authority  for 
demurring  and  pleading  to  the  same  matter.  The  rule  now 
in  question,  therefore,  is  not  affected  by  that  provision,  but  re- 
mains in  the  same  state  as  at  common  law. 

(o)  Supra,  p.  366. 

(p)  Bolton  v.  Cannon,  1  Vent.  272. 

<<7)  Bac.  Ab.,  Pleas,  etc.  (K.),  1. 

1  Auburn  &  O.  Canal  Co.  v.  Leitch,  2  Patterson  v.  Wilkinson,  55  Me. 
4  Den.  65,  Ames'  Cases,  31.  42,  92  Am.  Dec.  568. 


CHAPTER  X. 

OF  RULES  WHICH  TEND  TO  PRODUCE  CERTAINTY  OR  PARTICU- 
LARITY IN  THE  ISSUE. 

RULE  L 

§  191.  The  pleadings  must  have  certainty  of  place,  (r) — 

The  rules  tending  to  certainty  in  the  pleadings  and,  by  con- 
sequence, certainty  in  the  issue,  are  very  numerous,  and  in  their 
nature  do  not  easily  admit  of  methodical  arrangement;  but 
an  enumeration  shall  here  be  attempted  of  such  of  them  as 
appear  to  be  of  principal  importance. 

It  was  formerly  explained  that  the  nature  of  the  trial  by 
jury,  while  conducted  in  the  form  which  first  belonged  to  that 
institution,  was  such  as  to  render  particularity  of  place  abso- 
lutely essential  in  all  issues  which  a  jury  was  to  decide.  Con- 
sisting, as  the  jurors  formerly  did,  of  witnesses  or  persons  in 
some  measure  cognizant  of  their  own  knowledge  of  the  matter 
in  dispute,  they  were  of  course,  in  general,  to  be  summoned 
from  the  particular  place  or  neighborhood  where  the  fact  hap- 
pened; (f)  and  in  order  to  know  into  what  county  the  venire 
facias  for  summoning  them  should  issue,  and  to  enable  the 
sheriff  to  execute  that  writ,  it  was  necessary  that  the  issue, 
and  therefore  the  pleadings  out  of  which  it  arose,  should  show 
particularly  what  that  place  or  neighborhood  was.  (u)1  Such 
place  or  neighborhood  was  called  the  venue  or  visne  (from 
vitinetum\  (x)  and  the  statement  of  it  in  the  pleadings  ob- 
tained the  same  name;  to  allege  the  place  being,  in  the  lan- 
guage of  pleading,  to  lay  the  venue. 

(r)  Com.  Dig.,  Pleader  (C.  20);  Ibid.,  Abatement  (H.  18);  Co.  Litt.  125  a. 

«)  Co.  Litt.  by  Harg.  125  a,  n.  1.  "  The  venire  was  to  bring  up  the  pares  of  the  place 
where  the  fact  was  laid  in  order  to  try  the  issue;  and  originally  every  fact  was  laid  in  the 
place  where  it  was  really  done;  and  therefore  the  written  contracts  bore  date  at  a  certain 
place."  Gilb.  Hist.  C.  P.  84. 

(u)  Dderton  v.  nderton,  2  H.  Bl.  161.  Per  Lord  Mansfield,  Mostyn  v.  Fabrigas,  Cowp.  176; 
Co.  Litt.  125  a,  b.  See  2  Hen.  VH.,  4. 

(x)  Bac.  Ab.,  Visne  or  Venue  (A.);  8  Bl.  Com.  294 

1  Holder  T.  Aultman,  169  U.  S.  81.  See  local  and  transitory  actions,  post, 
p.  378, 


§  191.]  RULES   TO   PRODUCE    CERTAINTY    IN    ISSUE.  373 

The  present  \18%]£\  law  of  venue  may  be  stated  as  follows:1 
First,  the  original  writ  must  be  directed  to  the  sheriff  of 
some  county,  and  in  that  county  the  action  is  said  to  be  brought 
or  laid.  Each  affirmative  traversable  allegation  in  the  writ  is 
to  be  laid  with  a  venue  or  place,  comprising  not  only  the 
county  in  which  the  fact  arose,  but  the  parish,  town,  (y)  or 
hamlet,  within  the  county;  (z)  but  in  a  mere  denial,  of  course, 
no  venue  is  to  be  used;  nor  is  any  required  in  respect  of  facts 
not  traversable, —  for  example,  matter  of  inducement  or  aggra- 
vation, (a)  The  pleader  has  his  election  to  lay  either  the  parish, 
the  town  or  the  hamlet;  but  a  more  extensive  division  than  a 
parish  (for  example,  a  hundred)  is  not  a  sufficient  venue,  that 
having  apparently  been  considered  in  ancient  times  as  too  large 
an  allegation  of  place  to  instruct  the  sheriff  properly  as  to  the 
summoning  of  the  jurors.  (b)  Of  the  different  facts  alleged  in 
the  writ,  it  is  necessary  that  some  principal  one,  at  least,  should 
be  laid  in  some  parish,  town  or  hamlet  within  the  county  in 
which  the  action  is  brought,  in  order  to  justify  the  bringing  of 

<y)  A  town  is,  in  pleading,  otherwise  called  vill.    1  Bl.  Com.  114. 

(z)  Co.  Litt.  125  a;  Com.  Dig.,  Abatement  (H.  13);  Ibid.,  Pleader  (C.  20);  Bradish  v.  Bishop, 
Cro.  Eliz.  260;  Buller,  J.,  Rex  v.  Holland,  5  T. R.  620;  Amory  v.  Brodrick,  2  Bam.  &  Aid. 
712. 

(a)  Com.  Dig.,  Pleader  (0.  20),  cites  PL  Com.  190  b. 

(6)  Co.  Litt.  by  Harg,  125,  n.  1.  If  the  fact  happened  out  of  any  parish,  town  or  hamlet, 
but  in  some  other  known  place,  such  as  a  forest,  or  the  like,  such  known  place  may  be  laid 
for  venue.  Co.  Litt.  135  a,  b. ;  Bac.  Ab.,  Visne  (E.),  in  marg.  And  if  it  happened  out  of  any 
parish,  town,  hamlet,  or  known  place,  the  venue  may  be  laid  in  the  county  generally.  Id. 

1  An  elaborate  history  of  the  tea-  action  arising  beyond  the  state  (not 
sons  on  which  the  law  of  venue  was  affecting  title)  may  be  tried  wher- 
based  is  found  in  an  interesting  case,  ever  the  defendant  is  found  should 
Edward  Livingston  v.  Thos.  Jeffer-  be  read  in  connection  with  the  text 
son  (1811),  1  Brock.  203. 11  Myer's  Fed.  and  case  cited  above.  The  subject  of 
Dec.  721,  15  Fed.  Cas.  660.  The  opin-  venue  is  not  affected  by  code  pro- 
ions  show  the  real  weakness  of  the  cedure,  and  the  requirement  that 
reason  for  requiring  that  an  action  suits  affecting  land  shall  be  tried 
for  damages  for  trespass  to  real  prop-  where  the  land  is  situate  is  adhered 
erty  be  tried  in  the  county  where  the  to.  Marysville  v.  N.  B.  G.  M.  Co.,  66 
land  is  situate.  Lord  Mansfield  at-  CaL  343;  Butler  v.  Birkey,  13  Ohio 
tempted  to  do  away  with  the  rule  St.  514.  The  distinctions  between 
where  the  reason  for  it  had  ceased,  suits  in  rem  and  in  personam,  as  ap- 
but  the  courts  found  precedent  plied  in  the  chancery  courts,  must 
stronger  than  principle.  The  case  of  not  be  confused  with  local  legal  ac- 
Little  v.  Chicago,  St.  P.,  M.  &  O.  Ry.  tions.  See  Pennoyer  v.  Neff,  95  U.  S. 
Co.,  65  Minn.  48,  holding  that  a  local  714. 


374  RULES   TO    PRODUCE    CERTAINTY   IN    ISSUE.  [§  191. 

the  action  in  that  county;  (c)  and  such  county,  and  the  partic- 
ular place  so  laid  within  it,  are  called  the  venue  in  the  action, 
or  the  venue  where  the  action  is  laid. 

The  declaration,  as  it  conforms  to  the  writ  in  other  particu- 
lars, (d)  l  so  it  adheres  of  necessity  to  the  same  venue.  The 
county  where  the  action  is  laid  is  placed  at  the  commence- 
ment and  in  the  margin  of  the  declaration,  (e)  and  all  the  dif- 
ferent affirmative  traversable  allegations  are  to  be  laid  with 
venue  of  parish,  town  or  hamlet,  as  well  as  county,  (f)  in  the 
same  manner  as  above  explained  with  regard  to  the  writ  and 
in  accordance  with  that  instrument. 

In  proceedings  by  bill  the  law  of  venue  is  exactly  the  same 
as  that  already  described,  subject  only  to  the  difference  neces- 
sarily introduced  by  the  absence  of  the  original  writ,  the  only 
effect  of  which  is  that  the  declaration  instead  of  the  original 
first  determines  where  the  action  is  laid;  and  as  in  proceed- 
ings by  original  the  action  is  said  to  be  brought  or  laid  in  the 
county  into  which  the  writ  issues,  so,  in  proceedings  by  bill, 
it  is  said  to  be  brought  or  laid  in  the  county  named  in  the 
margin  of  the  declaration.  Again,  as  in  proceedings  by  orig- 
inal, the  county  into  which  the  writ  issues,  and  the  place  within 
that  county  at  which  the  principal  fact  is  laid,  are  called  the 
venue  in  the  action,  so  in  proceedings  by  bill  the  same  term 
applies  to  the  county  in  the  margin  of  the  declaration  and  the 
place  within  that  county  laid  to  the  principal  fact. 

Whether  the  action  be  by  original  or  by  bill,  the  plea,  repli- 
cation and  subsequent  pleadings  lay  a  venue  to  each  affirmative 
traversable  allegation,  according  to  the  principles  already 
stated,  until  issue  is  joined. 

It  having  been  stated  that  the  original  object  of  thus  laying 
a  venue  was  to  determine  the  place  from  which  the  venire 

(c)  See  The  King  v.  Burdett,  4  Barn.  &  Aid.  175, 176;  Calvin's  Case,  7  Rep.  1. 

(d)  Vide  supra,  pp.  152, 153. 

(e)  See  the  forms  of  declaration. 

(/)  See  the  authorities  cited  in  p.  873.  note  (z). 

1  Here  reference  may  be  made  to  some  definite  theory.   jEtna  Powder 

a    principle    heretofore    mentioned  Co.  v.  Hildebrand  (Ind.,  1894),  37  N. 

which  may  be  appropriately  placed  E.  R  136;  Wilson  v.  Johnson  (N.  J.), 

first  among  the  rules  of  pleading  29  AtL  R.  419.    See  Pom.  Code  Bern., 

under  any  form  of  procedure,  viz.;  §§  558,  559. 
that  all  pleading  must  conform  to 


§  192.]  BULES   TO   PRODUCE   CERTAINTY    IN   ISSUE.  375- 

facias  should  direct  the  jurors  to  be  summoned  in  case  the 
parties  should  put  themselves  upon  the  country,  it  will  be  proper 
now  to  consider  how  far  the  same  use  is  made  of  the  venue  in 
modern  practice.  And  in  order  to  explain  clearly  the  exist- 
ing law  on  this  subject,  it  will  be  convenient  to  take  a  short 
retrospect  of  its  former  state  and  progress. 

§  192.  Ancient  reason  for  rule. —  The  most  ancient  practice, 
as  established  at  the  period  when  juries  were  composed  of  per- 
sons cognizant  of  their  own  knowledge  of  the  fact  in  dispute, 
was  of  course  to  summon  the  jury  from  that  venue  which 
had  been  laid  to  the  particular  fact  in  issue;  and  from  the 
venue  of  parish,  town  or  hamlet,  as  well  as  county,  (g)1  Thus, 
in  an  action  of  debt  on  bond,  if  the  declaration  alleged  the 
contract  to  have  been  made  at  Westminster,  in  the  county  of 
Middlesex,  and  the  defendant  in  his  plea  denied  the  bond,  issue 
being  joined  on  this  plea,  it  would  be  tried  by  a  jury  from 
"Westminster.  Again,  if  he  pleaded  an  affirmative  matter,  as, 
for  example,  a  release,  he  would  lay  this  new  traversable  alle- 
gation with  a  venue ;  and  if  this  venue  happened  to  differ  from 
that  in  the  declaration,  being  laid,  for  example,  at  Oxford,  in 
the  county  of  Oxford,  and  issue  were  taken  on  the  plea,  such 
issue  would  be  tried  by  a  jury  from  Oxford  and  not  from  West- 
minster, (fi)  And  it  may  here  be  incidentally  observed  that,  as 
the  place  or  neighborhood  in  which  the  fact  arose,  and  also  the 
allegation  of  that  place  in  the  pleadings,  was  called  the  venue, 
so  the  same  term  was  often  applied  to  the  jury  summoned  from 
thence.  Thus  it  would  be  said  in  the  case  last  supposed,  that 
the  venue  was  to  come  from  Oxford.  With  respect  to  the  form 
of  the  venire  at  this  period,  it  was  as  follows :  Venire  facias 
duodecim  liberos  et  legates  homines,  de  vicineto  de  W.  (or  O.)  (i.  e.t 
the  parish,  town  or  hamlet),  j^r  quos  rei  veritas  melius  sciri 
poterit,  etc.  (i) 

[  The  ancient  reason  for  the  rule  has  passed  away."]  While  such 
appears  to  have  been  the  most  ancient  state  of  practice,  (&)  it 

(0)  Co.  Litt.  125  a;  Bac.  Ab.,  Visne  or  Venue  (E).    Illustrative  case,  43  Ed.  IIL,  1. 
(7i)  1  Saund.  247;  Com.  Dig.,  Action  (N.  12);  45  Ed.  Ill,  15;  3  Reeves,  110. 

(1)  De  vicineto  tali  (is  the  expression  of  Bracton)  per  quos  rei  veritas  melius  sciri  poterit, 
etc.    Bract.  309  b,  310  a,  396  b,  307  a.    In  the  statute  27  Eliz.,  ch.  6,  sec.  1,  the  form  is,  12 
liberos  et  legales  homines  de  vicineto  de  B.,  per  quos  rei  veritas,  etc.    And  see  Litt.,  sec.  234. 

(&)  See  Appendix,  note  (60).    [3  Cooley,  Blk.  (4th  ed.),  *294,  n.] 

1  See  Livingston  v.  Jefferson,  cited  supra. 


376  RULES    TO   PRODUCE    CERTAINTY   IN   ISSUE.  [§  192. 

soon  sustained  very  considerable  changes.  "When  the  jury  began 
to  be  summoned  no  longer  as  witnesses,  but  as  judges,  and,  in- 
stead of  being  cognizant  of  the  fact  on  their  own  knowledge, 
received  the  fact  from  the  testimony  of  others  judicially  ex- 
amined before  them,  the  reason  for  summoning  them  from  the 
immediate  neighborhood  ceased  to  apply;  and  it  was  considered 
as  sufficient  if,  by  way  of  partial  conformity  with  the  original 
principle,  a  certain  number  of  the  jury  came  from  the  same  hun- 
dred in  which  the  place  laid  for  venue  was  situate,  though  their 
companions  should  be  of  the  county  only,  and  neither  of  the 
venue,  nor  even  of  the  hundred.  This  change  in  the  manner  of 
executing  the  venire  did  not,  however,  occasion  any  alteration 
in  its  form,  which  still  directed  the  sheriff,  as  in  former  times, 
to  summon  the  whole  jury  from  the  particular  venue.  (1}  The 
number  of  hundredors  which  it  was  necessary  to  summon  was 
different  at  different  periods;  in  later  times  no  more  than  two 
hundredors  were  required  in  a  personal  action,  (m) 

In  this  state  of  the  law  was  passed  the  statute  16  and  17" 
Car.  II.,  ch.  8.  By  this  act  (which  is  one  of  the  statutes  of 
jeofails)  it  is  provided  "  that,  after  verdict,  judgment  shall  not 
be  stayed  or  reversed  for  that  there  is  no  right  venue,  so  as 
the  cause  were  tried  by  a  jury  of  the  proper  county  or  place 
where  the  action  is  laid."  This  provision  was  held  to  apply  to 
the  case  (among  others)  where  issue  had  been  taken  on  a  fact 
laid  with  a  different  venue  from  that  in  the  action,  but  where 
the  venire  had  improperly  directed  a  jury  to  be  summoned  from 
the  venue  in  the  action,  instead  of  the  venue  laid  to  the  fact  in 
issue,  (n)  This  had  formerly  been  matter  of  error,  and  there- 
fore ground  for  arresting  or  re  versing  the  judgment;  (o)  but  by 
this  act  (passed  with  a  view  of  removing  what  had  become  a 
merely  formal  objection)  the  error  was  cured  and  the  staying 
or  reversal  of  the  judgment  disallowed.1  While  such  was  its 

(0  27  Eliz.,  ch.  6,  sec.  1;  Litt.,  sec.  234. 
(m)  27  Eliz.,  ch.  6,  sec.  5.    See  Appendix,  note  (61). 
(n)  Craft  v.  Boite,  1  Saund.  247. 

(o)  1  Saund.  247,  n.  1;  2  Saund.  5,  n.  3;  Bowyer's  Case,  Cm  Eliz.  468;  Eden's  Case,  6  Rep. 
15  b;  Co.  Litt.  by  Harg.  185  a,  n.  1. 

1  In  Sevlenis  v.  Ladew,  140  N.  Y.    was  upheld.    This  case  does  not  con- 
463,  a  judgment  for  costs  against  a    traveue  the  text, 
plaintiff  by  default  for  want  of  reply 


§  193.]  RULES    TO   PRODUCE    CERTAINTY    IN   ISSUE.  377 

direct  operation,  it  has  had  a  farther  effect,  not  contemplated, 
perhaps,  by  those  who  devised  the  enactment.  For  what  the 
statute  only  purported  to  cure  as  an  error  it  has  virtually  es- 
tablished as  regular  and  uniform  practice;  and  issues  taken  on 
facts  laid  with  a  different  venue  from  that  in  the  action  have 
for  a  long  time  past  been  constantly  tried,  not  by  a  jury  of  the 
venue  laid  to  the  fact  in  issue,  but  by  a  jury  of  the  venue  in  the 
action.  (j>)1 

Another  change  was  introduced  by  the  statute  4  Ann, 
ch.  16,  sec.  6.  This  act  provides  that  "  every  venire  facias  for 
the  trial  of  any  issue  shall  be  awarded  of  the  J)ody  of  the 
proper  county  where  such  issue  is  triable,"  instead  of  being 
(as  in  the  ancient  form)  awarded  from  the  particular  venue  of 
parish,  town  or  hamlet.  From  this  time,  therefore,  the  form 
of  the  venire  has  been  changed,  and  directs  the  sheriff  to  sum- 
mon twelve  good  and  lawful  men,  etc.,  "  from  the  body  of  his 
county  ;"(#)  and  they  are  accordingly,  in  fact,  all  summoned 
from  the  body  of  the  county  only,  and  no  part  of  them,  neces- 
sarily, from  the  hundred  in  which  the  particular  place  laid  for 
venue  is  situate. 

On  the  whole,  then,  by  the  joint  effect  of  these  two  statutes, 
the  venire,  instead  of  directing  the  jury  to  be  summoned  from 
that  venue  which  had  been  laid  to  the  fact  in  issue,  and  from 
the  venue  of  parish,  town  or  hamlet,  as  well  as  county,  now 
directs  them  in  all  cases  to  be  summoned  from  the  lody  of  the 
county  in  which  the  action  is  laid,  whether  that  be  the  county 
laid  to  the  fact  in  issue  or  not,  and  without  regard  to  the 
parish,  town  or  hamlet. 

What  has  been  hitherto  said  on  the  subject  of  venue  relates 
only  to  the  form  in  which  the  venue  is  laid  and  its  effect  as 
to  the  venire.  There  is,  however,  another  very  important 
point  still  remaining  to  be  considered,  viz. :  that  which  relates 
to  the  necessity  of  laying  the  venue  truly. 

§  193.  The  modern  reason  for  the  rule  as  to  venue. —  Be- 
fore the  change  in  the  constitution  of  juries  above  mentioned, 

(l>)  2  Saund.  5,  n.  3. 

(2)  See  the  form  of  the  venire,  supra,  p.  816. 

1  Holder  v.  Aultman,  169  U.  S.  81. 


378  KULES   TO   PRODUCE    CERTAINTY   IN   ISSUE.  [§  193. 

the  venue  was  of  course  always  to  be  laid  in  the  true  place 
where  the  fact  arose ;  for  so  the  reason  of  the  law  of  venue 
evidently  required.  But  when,  in  consequence  of  that  change, 
this  reason  ceased  to  operate,  the  law  began  to  distinguish 
between  cases  in  which  the  truth  of  the  venue  was  material, 
or  of  the  substance  of  the  issue,  and  cases  in  which  it  was  not 
so.  A  difference  began  now  to  be  recognized  between  local 
and  transitory  matters.  The  former  consisted  of  such  facts  as 
carried  with  them  the  idea  of  some  certain  place,  comprising 
all  matters  relating  to  the  realty  and  hardly  any  others;  the 
latter  consisted  of  such  facts  as  might  be  supposed  to  have 
happened  anywhere,  and  therefore  comprised  debts,  contracts, 
and  generally  all  matters  relating  to  the  person  or  personal 
property.1  With  respect  to  the  former,  it  was  held  that  if  any 
local  fact  were  laid  in  pleading  at  a  certain  place,  and  issue 
were  taken  on  that  fact,  the  place  formed  part  of  the  sub- 
stance of  the  issue  and  must  therefore  be  proved  as  laid,  or 
the  party  would  fail  as  for  want  of  proof.  Bat  as  to  transi- 
tory facts  the  rule  was  that  they  might  be  laid  as  having  hap- 
pened at  one  place  and  might  be  proved  on  the  trial  to  have 
occurred  at  another,  (r) 

The  present  state  of  the  law,  with  respect  to  the  necessity 
of  laying  the  true  venue,  is  accordingly  as  follows: 

Actions  are  either  local  or  transitory.  An  action  is  local  if 
all  the  principal  facts  on  which  it  is  founded  be  local,2  and 
•transitory  if  any  principal  fact  be  of  the  transitory  kind.8  In 
a  local  action  the  plaintiff  must  lay  the  venue  in  the  action 
truly.  In  a  transitory  one  he  may  lay  it  in  any  county,  and 
any  parish,  town  or  hamlet  within  the  county  that  he  pleases. 

From  this  state  of  the  law  it  follows,  first,  that  if  an  action 
be  local  and  the  facts  arose  out  of  the  realm,  such  action  can- 
not be  maintained  in  the  English  courts;  (s)  for  as  the  venue  in 
the  action  is  to  be  laid  truly,  there  is  no  county  into  which, 

(r)  Vin.  Ab.,  Trial  (M.  f ) ;  Co.  Lltt,  282  a.    See  Appendix,  note  (62). 
(s)  Per  Buller,  J.,  Doulson  v.  Matthews,  4  T.  R.  503. 

iPer  Marshall,  J.,   Livingston  v.  101  Mass.  240,  3  Am.  Rep.  336;  An- 

Jefferson,  cited  supra;  Little  v.  C.,  drews  v.  Herriott,  4  Cow.  508. 

St.  P.,  M.  &  O.  Ry.  Co.,  infra,  p.  379.  3  McDuffee  v.  Portland  &  Roches- 

2  Livingston  v.  Jefferson,  1  Brock,  ter  R  R.,  52  N.  H.  430, 13  Am.  Rep.  72. 
-203;  Crocker  v.  Marine  Nat'l  Bank, 


§  103.] 


RULES   TO    PRODUCE    CERTAINTY    IN   ISSUE. 


379 


consistently  with  that  rule,  the  original  writ  can  be  directed.1 
But,  on  the  other  hand,  if  the  action  be  transitory,  then, 
though  all  the  facts  arose  abroad,  the  action  may  be  main- 
tained in  this  country,  because  the  venue  in  the  action  may  be 
laid  in  any  English  county,  at  the  option  of  the  plaintiff. 

The  same  state  of  law  also  leads  to  the  following  inference: 
that  in  a  transitory  action  the  plaintiff  may  have  the  action, 
tried  in  any  county  that  he  pleases ;  for,  as  we  have  seen,  he  may 
lay  the  venue  in  the  action  in  any  county,  and,  upon  issue  joined, 
the  venire  issues  into  the  county  where  the  venue  in  the  action 
is  laid.2  And  such,  accordingly,  is  the  rule,  subject  only  to  a 
check  interposed  by  another  regulation,  viz.,  that  which  re- 
lates to  the  changing  of  the  venue.  The  courts  established 
about  the  reign  (as  it  is  said)  of  James  I.  (£)  a  practice  by 
which  defendants  were  enabled  to  protect  themselves  from, 
any  inconvenience  they  might  apprehend  from  the  venue  being 


(«)  Knight  v.  Farnsby,  2  Salk.  670. 

1  Actions  to  recover  real  property 
are  local  Actions  to  cover  damages 
for  an  injury  to  real  property,  e.  g., 
trespass  quare  clausum,  are  gener- 
ally held  to  be  locaL  Ellenwood  v. 
Marietta  Chair  Co.,  158  U.  S.  105. 
But  in  Little  v.  Chicago,  St.  P.,  M.  & 
O.  Ry.  Co.,  65  Minn.  48,  it  was  held, 
even  where  the  local  statute  required 
actions  for  injuries  to  real  property 
to  be  tried  in  the  county  where  the 
land  lay,  that  for  damage  to  land  out- 
side the  slate  an  action  would  lia 
And  in  Stone  v.  United  States,  167 
U.  S.  178,  an  action  for  the  unlawful 
cutting  of  timber  in  Idaho  was  enter- 
tained in  Washington.  The  real  dis- 
tinction should  be  between  actions 
in  rem,  or  directly  affecting  the 
thing,  and  those  which  are  in  truth 
but  personal 

Admiralty  causes  are  cognizable 
exclusively  by  the  federal  courts, 
and  it  is  sometimes  difficult  to  de- 
termine whether  the  cause  is  an  ad- 
miralty case  or  one  happening  not 
on  the  sea;  e,  g.,  where  a  plank  is 


handled  on  the  dock,  and  falling  in- 
jures a  man  on  shipboard,  held  an 
admiralty  case.  Hermann  v.  Port  B. 
M,  Co.,  69  Fed.  Rep.  646.  On  the 
other  hand,  damage  to  property  on 
land  by  the  negligent  escape  of 
sparks  from  a  steamer  is  not  within 
the  admiralty  jurisdiction.  Ex  parte 
Phenix  Ins.  Co.,  118  U.  S.  610.  If  an 
act  is  done  in  one  county  which  in- 
jures land  in  another,  the  venue  may 
be  in  either.  Pilgrim  v.  Mellor,  1  HI. 
App.  448.  Advantage  may  be  taken 
of  an  error  in  venue  when  the  suit 
should  be  brought  in  one  place,  but 
the  court  has  jurisdiction  in  another, 
by  demurrer  or  plea  in  abatement. 
Drake  v.  Drake,  83  111.  526.  Or  by  a 
plea  to  the  jurisdiction.  See  form  in 
Livingston  v.  Jefferson,  supra.  And 
it  is  held  that  the  defect  is  fatal  at 
any  stage.  Ellenwood  v.  Marietta 
Chair  Co.,  158  U.  S.  105.  Venue  is  gen- 
erally regulated  by  statutes. 

2  In  the  United  States  the  statutes 
usually  provide  for  suing  a  defend- 
ant where  he  resides. 


380  BULES   TO   PRODUCE   CERTAINTY    IN    ISSUE.  [§  193. 

laid  contrary  to  the  fact,  and  enforce,  if  they  pleased,  a  com- 
pliance with  the  stricter  and  more  ancient  system,  (u)  By 
this  practice,  when  the  plaintiff  in  a  transitory  action  lays  a 
false  venue,  the  defendant  is  entitled  to  move  the  court  to  have 
the  venue  changed,  i.  e.,  altered  to  the  right  place;  and  the 
court,  upon  affidavit  that  the  cause  of  action  arose  wholly  in 
the  county  to  which  it  is  proposed  to  change  the  venue,  will 
in  most  cases  grant  the  application  and  oblige  the  plaintiff  to 
amend  his  declaration  in  this  particular,  unless  he,  on  the  other 
hand,  will  undertake  to  give  at  the  trial  some  material  evidence 
arising  in  the  county  where  the  venue  was  laid. 

"Whether  the  action  bp  local  or  transitory,  every  local  fact 
alleged  in  the  writ  and  declaration  must  still  be  laid  with  its 
true  venue,  on  peril  of  a  variance  if  the  fact  should  be  brought 
in  issue ;  but  transitory  facts  may  be  laid  with  any  venue,  at 
the  choice  of  the  plaintiff,  though  it  is  the  usual  and  most 
proper  course  to  lay  them  all  with  the  venue  in  the  action. 
As  in  the  writ  and  declaration,  so  in  the  plea  and  subsequent 
pleadings,  every  local  fact  must  be  laid  with  its  true  venue, 
under  peril  of  variance;  but  with  respect  to  transitory  ones, 
the  rule  is  that  they  must  be  laid  with  the  venue  in  the  ac- 
tion, (x)  and  even  to  lay  the  true  place  is  in  this  case  not 
allowable  if  it  differ  from  that  venue.  Thus,  in  the  example 
already  supposed,  of  an  action  on  a  bond  where  the  action  is 
laid  in  Middlesex,  if  the  defendant  should  plead  a  release  at 
Oxford,  this  departure  from  the  venue  in  tlie  action  would  be 
bad,  (y)  though  the  release  should  really  have  been  executed 
there.  For  as  the  plaintiff  may,  for  a  transitory  matter,  choose 
any  venue  that  he  likes  in  his  writ  and  declaration,  so  upon 
the  same  principle  it  would  have  followed  that  the  defendant 
might  also,  for  a  transitory  matter,  have  chosen  any  venue  in 
his  plea;  and  thus,  whoever  happened  to  make  the  last  affirm- 
ative allegation  and  therefore  to  lay  the  last  venue,  would  have 
been  able,  prior  to  the  alteration  of  practice  introduced  by  the 
statute  of  Charles  II.,  to  draw  the  venire  facias  and  the  trial 
to  any  place  that  he  pleased.  But  it  was  thought  more  rea- 

(«)  See  Appendix,  note  (63). 

(a?)  Wright  v.  Ramseot,  1  Saund.  85;  2  Saund.  5,  n.  8. 

(y)  Co.  Litt  282  b. 


§  193.]  RULES   TO   PRODUCE   CERTAINTY   IN   ISSUE.  381 

sonable  and  convenient  that  this  option  should  rest  with  the 
plaintiff,  who,  having  in  the  first  instance  chosen  a  venue,  ought 
not  to  be  removed  from  it  without  cause.  The  defendant,  there- 
fore, is  obliged  to  follow  the  venue  that  the  plaintiff  has  laid; 
and  in  consequence  of  the  establishment  of  this  rule,  it  seems 
now  to  be  held  that  to  transitory  matters  no  venue  need  now 
be  laid  in  pleadings  subsequent  to  the  declaration,  because, 
with  respect  to  every  matter  of  this  description,  the  original 
venue  will  be  taken  to  be  implied,  (s)  In  practice,  however,  it 
is  usual  to  lay  a  venue  in  these  as  well  as  in  the  declaration ; 
and  perhaps  in  point  of  strict  form  it  is  the  more  proper  course. 

Another  point  to  be  noticed  on  this  subject  of  the  true  alle- 
gation of  venue  is,  that  when  transitory  matters  are  alleged 
out  of  their  true  place,  it  seems  to  be  necessary  that  they  should 
be  laid  (as  the  phrase  is)  under  a  videlicet,  i.  <?.,  with  the  prior 
intervention  of  the  words  '''to  wit,"  or  "that  is  to  say,"  for  the 
form  of  which  the  reader  may  be  referred  to  many  of  the  past 
examples  of  pleadings  in  this  work. 

The  effect  and  object  of  the  videlicet  is  to  mark  that  the  party 
does  not  undertake  to  prove  the  precise  [fact].  And  accord- 
ingly there  is  some  doubt  whether  the  omission  of  a  videlicet 
does  not  occasion  a  necessity,  in  the  event  of  a  traverse  even 
of  a  transitory  matter,  of  proving  the  place  alleged,  (a)  On  the 
other  hand,  however,  it  is  clear  that  where  the  place  is  mate- 
rial, or,  in  other  words,  where  the  matter  is  local,  the  use  of  a 
videlicet  will  not  prevent  the  necessity  of  proving  the  venue 
laid.  This  doctrine  as  to  a  videlicet,  it  will  be  observed,  is 
not  peculiar  to  venue,  but  applies  (as  will  afterwards  appear) 
to  many  other  of  the  points  on  which  certainty  is  required  in 
pleading.1 

Exception  to  the  general  rule. —  The  last  point  of  remark  that 
occurs  on  this  subject  relates  to  the  case  where  a  local  matter 
occurring  out  of  the  realm  is  alleged  in  the  course  of  the  plead- 
ing. This  was  formerly  considered  as  a  case  of  difficulty;  for, 

(z)  See  1  Chitty,  517. 

(a)  Mr.  Chitty  inclines  to  consider  the  omission  immaterial.  See  1  Chitty,  308,  note  (6). 
Opposed,  however,  to  +  he  authorities  on  which  the  learned  author  relies,  are  Symmons  v. 
Knox,  3  T.  R.  68;  Arnfield  v.  Bates,  3  M.  &  S.  173;  2  Saund.  291  (c);  Bray  v.  Freeman,  2  Moore, 
114,93. 

1  See  post,  p.  383,  note. 
25 


382  BULES   TO   PRODUCE    CERTAINTY   IN   ISSUE.  [§  194:. 

on  the  one  hand,  all  local  facts  are  to  be  alleged  (as  has  been 
shown)  in  the  true  place;  and  on  the  other  hand,  if  a  place  out 
of  the  realm  be  laid  for  venue  and  issue  be  joined  on  the  fact, 
it  was  at  one  time  supposed  that  the  issue  could  not  be  tried, 
because  no  jury  could  be  summoned  from  the  place ;  and  prior 
to  the  statute  of  Charles,  it  was  by  the  general  rule  essential 
(as  already  stated)  that  the  jury  should  be  summoned  from  the 
venue  laid  to  the  fact  in  issue.  (5)  It  was,  however,  early  de- 
cided that  notwithstanding  that  general  rule,  such  matter  might 
be  tried  by  a  jury  from  the  venue  in  the  action,  and  thus  the 
difficulty  was  removed.  (c)  1  And  by  way  of  more  effectually 
preventing  the  objection,  a  form  has  long  been  in  use  which 
satisfies  the  double  object  of  conforming  to  the  true  place,  and 
at  the  same  time  laying  a  venue  within  the  realm ;  the  venue 
of  a  fact  arising  abroad  being  often  alleged  with  a  videlicet 
under  the  following  form  of  expression:  "at  Fort  St.  George, 
in  the  East  Indies  "  (the  real  place),  "  to  wit,  at  Westminster,  in 
the  county  of  Middlesex  "  (the  venue  in  the  action),  (d)2  "With 
respect  to  this  formula,  indeed,  we  may  take  occasion  to  ob- 
serve that  it  is  usually  applied,  not  only  to  local  facts  arising 
out  of  the  realm,  but  to  those  arising  in  this  country  also,  if 
they  happened  at -a  different  venue  from  that  in  the  action. 

RULE  II 

§  194.  The  pleadings  must  have  certainty  of  time,  (e) — 

In  personal  actions  the  pleadings  must  allege  the  time,  that  is, 
the  day,  month  and  year  when  each  traversable  fact  occurred ; 
and  when  there  is  occasion  to  mention  a  continuous  act,  the 
period  of  its  duration  ought  to  be  shown,  (f) 3 

(b)  See  a  curious  instance  of  the  difficulty  formerly  found  in  such  cases,  cited  per  Abbott, 
C.  J.,  The  King  v.  Burdett,  4  Barn.  &  Aid.  172;  and  another  instance,  cited  Dowdale's  Case, 
6  Rep.  47  b. 

(c)  Dowdale's  Case,  6  Rep.  46  b;  Calvin's  Case,  7  Rep.  27  a. 

(d)  Com.  Dig.,  Action  (N.  7). 

(e)  Com.  Dig.,  Pleader  (C.  19);  Halsey  v.  Carpenter,  Cro.  Jac.  359;  Denison  v.  Richardson, 
14  East,  291. 

(/)  Ibid. 

1  This  is  precisely  the  case  of  Little       8  See  People  v.  Ryder,  12  N.  Y.  433; 
v.  Chicago,  St.  P.,  M.  &  O.  Ry.  Co.,  65    Moxley  v.  Moxley,  2  Mete.  (Ky.)  311; 
Minn.  48,  67  N.  W.  R.  847.  King  v.  Roxborough,  2  Tyr.  473. 

2  Quoted,  Holder  v.  Aultman,  169 
U.  S.  90. 


§  194.]  RULES   TO   PRODUCE    CERTAINTY    IN   ISSUE.  383 

The  necessity  of  laying  a  time,  like  that  of  laying  a  venue, 
extends  to  traversable  facts  only,  and  therefore  no  time  need 
be  alleged  to  matter  of  inducement  or  aggravation.  The 
courts,  indeed,  are  in  the  habit  of  considering  the  allegations 
of  place  and  time  as  connected  together,  and  have  laid  down 
this  general  principle,  that  wherever  it  is  necessary  to  lay  a 
venue  it  is  also  necessary  to  mention  time,  (g) 

As  the  place,  in  transitory  matters,  is  considered  as  forming 
no  material  part  of  the  issue,  so  that  one  place  may  be  alleged 
and  another  proved,  the  same  law  has  obtained  with  respect 
to  time,  in  all  matters  generally.  (A)1  The  pleader,  therefore, 
in  general,  assigns  any  time  that  he  pleases  to  a  given  fact. 
This  option,  however,  is  subject  to  certain  restrictions.  1.  He 
should  lay  the  time  under  a  videlicet,  if  he  does  not  wish  to 
be  held  to  prove  it  strictly,  (i) 2  2.  He  should  not  lay  a  time 
that  is  intrinsically  impossible  or  inconsistent  with  the  fact  to 
which  it  relates.  A  time  so  laid  would  in  general  be  sufficient 
ground  for  demurrer.  But  on  the  other  hand  there  is  no 
ground  for  demurrer  where  such  time  is  laid  to  a  fact  not 
traversable,  or  where,  for  any  other  reason,  the  allegation  of 
time  was  unnecessarily  made;  for  an  unnecessary  statement 
of  time,  though  impossible  or  inconsistent,  will  do  no  harm, 
upon  the  principle  that  utile,  per  inutile,  non  mtiatur.  (k) 
3.  Again,  there  are  some  instances  in  which  time  happens  to 
form  a  material  point  in  the  merits  of  the  case',  and,  in  these 
instances,  if  a  traverse  be  taken  the  time  laid  is  of  the  sub- 
stance of  the  issue  and  must  be  strictly  proved;8  just  as  in 
local  matters  it  is  necessary  to  prove  the  alleged  venue.  The 
pleader,  therefore,  with  respect  to  all  facts  of  this  description 

(g)  Per  Duller,  J.,  The  King  v.  Holland,  5  T.  R  620. 

(A)  Co.  Litt.  283  a;  The  King  v.  Bishop  of  Chester,  2  Salk.  661;  Cooke  v.  Blrt,  6  Taunt 
765. 

(i)  As  to  the  meaning  and  effect  of  a  videlicet,  vide  supra,  p.  381. 

(fc)  This  appears  to  be  a  correct  general  statement  of  the  law  with  respect  to  demurrer 
for  an  impossible  or  inconsistent  date;  but  the  current  of  authorities  Is  not  quite  clear  and 
uniform  on  this  subject,  ride  Com.  Dig.,  Pleader  (C.  19).  See  Appendix,  note  (64). 

!Relyea  v.  Beaver,  84  Barb.  547;  to  the  materiality  of  time,  1  Chitty, 

Spencer  v.  Trafford,  43  Md.  1 ;  How-  PI.  *259,  and  notes, 
land  Y.  Davis,  40  Mich.  546.  » Lockwood  v.  Bigelow,  11   Minn. 

^Videlicet  does  not  help  material  113;  Williams  v.  Nesbit,  65  Ind.  171; 

facts.    Frank  v.  Morris,  57  111.  139 ;  Brown   v.   Harmon,   21    Barb.   508 ; 

Ladue  v.  Ladue,  16  Vt  189.    See  as  Wellington  v.  Milliken,  82  Me.  5B. 


384:  KULES   TO   PRODUCE    CERTAINTY   IN    ISSUE.  [§  194. 

must  state  the  time  truly,  at  the  peril  of  failure  as  for  a 
variance.  And  here,  as  in  the  case  of  a  local  fact,  the  inser- 
tion of  a  videlicet  will  give  no  help.  Thus,  where  the  dec- 
laration stated  an  usurious  contract  made  on  the  21st  day 
of  December,  1774,  for  giving  day  of  payment  of  a  certain 
sum  to  the  23d  day  of  December,  1776,  and  the  proof  was 
that  the  contract  was  on  the  23d  December,  1774,  giving  day 
of  payment  for  two  years,  it  was  held  that  the  verdict  must  be 
for  the  defendant;  the  principle  of  this  decision  being  that 
the  time  given  for  payment  being  of  the  substance  of  an 
usurious  contract,  such  time  must  be  proved  as  laid.  (I)  So 
where  the  declaration  stated  an  usurious  agreement,  on  the 
14th  of  the  month,  to  forbear  and  give  day  of  payment  for  a 
certain  period,  but  it  was  proved  that  the  money  was  not  ad- 
vanced till  the  16th,  the  plaintiff  was  nonsuited ;  (m) l  it  being 

(I)  Carlisle  v.  Trears,  Cowp.  671. 

(m)  The  nature  of  judgment  of  nonsuit  has  been  stated  In  the  first  chapter,  supra,  p.  240.. 
It  will  be  proper  to  explain  here,  however,  that  when,  on  account  of  a  variance  or  any 
other  matter  of  form,  the  plaintiff  understands  that  the  judge  is  going  to  direct  the  jury  to 
find  a  verdict  against  him,  he  usually  takes  the  course  of  avoiding  a  verdict  by  voluntarily 
submitting  to  judgment  of  nonsuit;  and  for  that  purpose  he  is  supposed  to  absent  himself 
from  Uie  court.  The  reason  is  that  such  judgment  does  not  prevent  his  bringing  another 
action ;  but  by  a  verdict  he  is  barred  forever.  See  3  Bl.  Com.  376. 

1  Nonsuit:  When  the  plaintiff  does  ment  by  confession  opened  by  order 
not  appear  he  should  be  nonsuited,  of  court  for  a  defense,  a  nonsuit 
and  it  is  error  to  proceed  to  trial  may  be  taken.  Gordon  v.  Goodell, 
without  him.  Nordruanser  v.  Hitch-  84  111.  429.  A  voluntary  nonsuit 
cock,  40  Mo.  178.  In  some  jurisdic-  bars  an  appeal  or  error.  Rankin  v. 
tions  a  practice  obtains  of  directing  a  Curtenius,  12  111.  334.  In  trials  by 
nonsuit  without  the  plaintiff's  con-  the  court  without  a  jury,  nonsuit 
sent,  even  though  he  may  be  present  may  be  taken  after  opinion  is  an- 
in  court  and  after  the  jury  have  been  nounced  but  before  judgment  is  en- 
sworn  and  evidence  heard.  Thomp.  tered.  Howe  v.  Harroun,  17  111.  494 ; 
on  Tr.,  §  2221.  But  in  general  the  Wilson  S.  M.  Co.  v.  Lewis,  10  111.  App. 
practice  is  a  privilege  of  the  plaintiff  191.  Judgment  of  nonsuit  is  no  bar. 
to  avoid  the  effect  of  a  judgment  Holmes  v.  C.  &  A.  Ry.,  y4  111.  439 ; 
against  him  barring  another  action.  Bates  v.  Jenkins,  Breese  (111.),  411. 
This  is  called  a  voluntary  nonsuit.  A  voluntary  nonsuit  and  a  dismissal 
Castle  v.  Bullard,  23  How.  173.  See  have  the  same  effect  Holmes  v.  C. 
note  5,  Notes  U.  S.  Cases.  To  bar  this  &  A.  Ry.,  94  111.  434.  A  nonsuit, 
common-law  right  the  whole  case  whether  voluntary  or  involuntary  is 
must  have  gone  to  the  jury.  Berry  not  a  bar.  Id. ;  Central  Tr.  Co.  v. 
v.  Savage,  3  Scam.  261.  And  if  the  Pullman  P.  C.  Co.,  139  U.  S.  24 ; 
jury  return  to  the  bar  for  instruo  Bournonville  v.  Goodall,  10  Pa.  St 
tions  a  nonsuit  may  be  taken.  Hens-  133;  Oscanyan  v.  Arms,  103  U.  S. 
ley  v.  Peck,  13  Ma  587.  Upon  a  judg-  261.  See  2  Foster's  Fed.  Pr.  (2d  ed.) 


194.1 


RULES   TO    PRODUCE    CERTAINTY   IN    ISSUE. 


385 


held  by  Lord  Mansfield  at  the  trial,  and  afterwards  by  the 
court  in  bank,  that  the  day  from  whence  the  forbearance 
took  place  was  material  though  laid  under  a  videlicet,  (n) 

(n)  Johnson  v.  Picket,  cited  Grimwood  v.  Barritt,  6  T.  R.  403;  Hardy  Y.  Cathcart,  5 
Taunt.  2. 


774,  note.  An  involuntary  nonsuit 
may  be  excepted  to  and  will  be 
ground  for  error.  Id. 

Withdrawing  a  juror  is  another 
means  by  which  the  plaintiff  may 
recede  from  the  final  conclusion  of  a 
cause  without  submitting  his  case  for 
final  determination.  The  withdraw- 
ing a  juror  works  a  continuance  of 
the  case,  and  is  usual  in  cases  of  sur- 
prise. It  should  be  at  cost  of  the  party 
asking  it  It  was  a  practice  at  com- 
mon law,  and  is  to  be  exercised  under 
the  discretion  of  the  court  Miller  v. 
Melzger,  16  111.  390;  Scholfield  v. 
Settley,  31  id.  515;  Wolcott  v.  Stude- 
baker,  34  Fed.  Rep.  8. 

Excluding  the  plaintiffs  evidence 
is  another  mode  of  defeating  the 
plaintiffs  cause  often  practiced  at  the 
present  time.  It  has  the  same  effect 
as  a  nonsuit  Holmes  v.  C.  &  A.  Ry., 
94  III  439.  It  is  a  doubtful  practice, 
and  should  only  be  permitted  in  clear 
cases.  Frazier  v.  Howe,  106  111.  563. 
A  motion  to  exclude,  or  a  demurrer 
to  the  evidence,  admits  all  facts  to  be 
true,  and  the  existence  of  all  other 
facts  which  might  be  inferred  from 
the  facts  alleged.  Phillip  v.  Dickin- 
son, 85  111.  11. 

Directing  a  verdict:  The  main  dif- 
ference between  a  nonsuit  and  direct- 
ing a  verdict  lies  in  the  fact  that  a 
verdict  and  judgment  constitute  a 
"bar  to  another  suit,  while  a  nonsuit 
does  not  Oscanyan  v.  Arms  Co., 
103  U.  S.  261.  The  practice  of  direct- 
ing the  jury  to  find  a  particular  ver- 
dict is  one  in  common  use.  It  seems 
to  be  restricted  in  its  use  to  the  prov- 
ince of  saying  what  verdict  the  jury 


may  not  find,  and  not  a  direction  that 
they  must  find  for  a  particular  party. 
The  direction  is  that  the  jury  shall 
find  against  the  party  having  the 
burden  of  proof.  Phillips  v.  Brigham, 
26  Ga.  617 ;  Clean  v.  Jones,  7  Exch. 
421 ;  Robinson  v.  111.  Cent  Ry.  Co., 
30  la.  401.  Where  there  is  any  evi- 
dence tending  to  support  every  mate- 
rial allegation,  the  sufficiency  of  such 
evidence  is  for  the  jury,  and  the 
court  should  submit  to  it  the  ques- 
tion as  to  whether  such  evidence  is 
sufficient  from  which  to  find  a  verdict 
Groll  v.  Tower,  85  Mo.  249 ;  House  v. 
Wilder,  47  111.  510.  While  it  is  gen- 
erally held  that  the  jury  should  be 
left  to  find  the  effect  of  the  evidence, 
the  rule  seems  to  be  departed  from 
in  cases  of  directing  the  jury  to  find 
for  the  defendant  in  cases  where  the 
ground  of  the  direction  is  proof  of 
the  plaintiff's  contributory  negli- 
gence, for  this  is  the  court  deciding 
what  is  contributory  negligence.  See 
Sacket  on  Instructions  (2d  ed.),  27; 
Greening  v.  Bishop,  39  Wis.  552; 
Johnson  v.  Moss,  45  Cal.  515 ;  Kelly 
v.  Hendricks,  26  Mich.  206 ;  Am.  Ins. 
Co.  v.  Butler,  70  Ind.  1.  When  the 
evidence  is  so  insufficient  that  the 
court  would  feel  bound  to  set  a  ver- 
dict aside,  he  should  direct  a  verdict 
for  the  defendant  Pullman  P.  C. 
Co.  v.  Laack,  143  111.  243 ;  Teff  t  v.  Ash- 
bough,  13  id.  602.  Whether  there  is 
any  evidence  is  for  the  court  Pole- 
man  v.  Johnson,  84  III  269.  Some 
courts  hold  that  if  there  is  any  evi- 
dence, though  it  be  but  a  scintilla,  it 
must  be  left  to  the  jury ;  while  others, 
applying  the  maxim  de  minimis  non 


386  RULES   TO   PRODUCE   CERTAINTY    IN   ISSUE.  [§   195. 

"Where  the  time  needs  not  to  be  truly  stated  (as  is  gener- 
ally the  case),  it  is  subject  to  a  rule  of  the  same  nature  with 
one  that  applies  to  venue  in  transitory  matters,  (o)  viz. :  that 
the  plea  and  subsequent  pleadings  should  follow  the  day  al- 
leged in  the  writ  and  declaration ;  (p)  and  if,  in  these  cases, 
no  time  at  all  be  laid,  the  omission  is  aided,  after  verdict  or 
judgment,  by  confession  or  default,  by  the  operation  of  the 
statute  of  jeofails.  (g)  But  where,  in  the  plea  or  subsequent 
pleadings,  the  time  happens  to  be  material,  it  must  be  alleged ; 
and  there  (as  in  the  case  of  a  venue  to  a  local  fact)  the  pleader 
may  be  obliged  to  depart  from  the  day  in  the  writ  and  dec- 
laration.1 

Certainty  of  time  is  said  to  be  required  in  personal  actions- 
only,  it  being  held  that  in  real  and  mixed  actions  it  is,  in  gen- 
eral, not  necessary  to  allege  the  day,  month  and  year,  and 
that  it  is  sufficient  to  show  in  what  king's  reign  the  matter 
arose,  (r) 

RULE  IIL 

§  195.  The  pleadings  must  specify  quality,  quantity  and 
value,  (s)  — 

It  is,  in  general,  necessary  where  the  declaration  alleges 
any  injury  to  goods  and  chattels,  or  any  contract  relating  to 
them,  that  their  quality,  quantity,  and  value  or  price,  should 
be  stated.  And  in  any  action  brought  for  recovery  of  real 
property,  its  quality  should  be  shown,  as  whether  it  consists 
of  houses,  lands  or  other  hereditaments;  and,  in  general,  it 
should  be  stated  whether  the  lands  be  meadow,  pasture  or 

(o)  Supra,  p.  380. 

(p)2Saund.  5,  n.  8;  Hawev.  Planner,  1  Saund.  14 

(g)  Higgins  v.  Highfleld,  13  East,  407. 

(r)  Com.  Dig.,  Pleader  (C.  19);  The  Kong  v.  Bishop  of  Chester,  2  Salk.  561;  Skin.  600;  & 
Hen.  6,  115, 118. 

(s)  Oportet  quod  petens  rem  designet,  quam  petit, — videlicet  qualitatem,  etc., —  item 
qvantitatem,  etc.  Bract.  431  a;  Harpur's  Case,  11  Rep.  25  b,  55  a;  Doct.  PI.  85,  86;  Knight 
v.  Symrns,  Carth.  204;  Doe  v.  Ploughman,  1  East,  441;  Goodtitle  v.  Otway,  8  East,  357;  An- 
drew v.  Whitehead,  13  East,  102. 

curat  lex,  hold  a  mere  scintilla  to  be  585 ;  Conner  v.   Giles,   76  Me.   132 ; 

insufficient    See  Brooks  v.  Somer-  Com.  of  Marion  Co.  v.  Clark,  94  TJ.  & 

ville,  106    Mass.    271;    McKown   v.  278. 

Craig,  39  Mo.  156 ;  Claflin  v.  Meyer,  J  Germania  Ins.  Co.  v.  Lieberman, 

75  N.  Y.  260;  Hogan  v.  Gushing,  49  58  III  117. 

Wia.   169;  May  v.  I.  C.  Ry.,  35  la. 


§  195.]  BTTLES   TO   PEODUOE    CERTAINTY    IN   ISSUE.  387 

arable,  etc.  And  the  quantity  of  the  lands  or  other  real  estate 
must  also  be  specified,  (t)  So,  in  an  action  brought  for  in- 
juries to  real  property,  the  quality  should  be  shown,  as  whether 
it  consists  of  houses,  lands  or  other  hereditaments. 

Thus  in  an  action  of  trespass  for  breaking  the  plaintiff's 
close  and  taking  away  his  fish,  without  showing  the  number 
or  nature  of  the  fish,  it  was  after  verdict  objected  in  arrest  of 
judgment,  first,  "  that  it  did  not  appear  by  the  declaration  of 
what  nature  the  fish  were,  pikes,  tenches,  breams,"  etc. ;  and 
secondly,  that  "  the  certain  number  of  them  did  not  appear." 
And  the  objection  was  allowed  by  the  whole  court,  (u).  So 
where,  in  an  action  of  trespass,  the  declaration  charged  the 
taking  of  cattle,  the  declaration  was  held  to  be  bad  because 
it  did  not  show  of  what  species  the  cattle  were,  (a?)  So  in  an 
action  of  trespass,  where  the  plaintiff  declared  for  taking  goods 
generally,  without  specifying  the  particulars,  a  verdict  being 
found  for  the  plaintiff,  the  court  arrested  the  judgment  for 
the  uncertainty  of  the  declaration,  (y)  So  (in  a  modern  case) 
where,  in  an  action  of  replevin,  the  plaintiff  declared  that  the 
defendant,  "  in  a  certain  dwelling-house,  took  divers  goods  and 
chattels  of  the  plaintiff,"  without  stating  what  the  goods 
were,  the  court  arrested  the  judgment  for  the  uncertainty 
of  the  declaration,  after  judgment  by  default  and  a  writ  of 
inquiry  executed,  (z)  So  in  an  action  of  dower,  where  blanks 
were  left  in  the  count  for  the  number  of  acres  claimed,  the 
judgment  was  reversed  after  verdict,  (a)  So  in  ejectment, 
the  plaintiff  declared  for  five  closes  of  land,  arable  and  pasture, 
called  Long  Furlongs,  containing  ten  acres ;  upon  not  guilty 
pleaded  the  plaintiff  had  a  verdict;  and  it  was  moved  in 
arrest  of  judgment  that  the  declaration  was  ill  because  the 
quantity  and  quality  of  the  lands  were  not  distinguished  and 
ascertained,  so  as  to  show  how  many  acres  of  arable  there 
were  and  how  many  of  pasture.  And  for  this  reason  the  dec- 
laration was  held  ill  and  the  judgment  arrested.  (5)1 

tf)  See  the  authorities  last  cited. 

(w)  Playter's  Case,  5  Rep.  34  b. 

(x)  Dale  v.  Phillipson,  2  Lutw.  1374. 

(y)  Bertie  v.  Pickering,  4  Burr.  2455;  Wiat  v.  Essington,  Ld.  Ray.  1410,  8.  P. 

CO  Pope  v.  Tillman,  7  Taunt.  642. 

(a)  Lawley  v.  Gattacre,  Cro.  Jac.  498. 

ft)  Knight  v.  Symnifl,  Garth.  204.    See  Appendix,  note  (65). 

1 0.  M.  Ry.  v.  People,  149  DL  66& 


388  ETJLES   TO    PRODUCE    CEKTAINTY   EST   ISSUE.       [§§  196,  197. 

"With  respect  to  value,  it  is  to  be  observed  that  it  should  be 
specified  in  reference  to  the  current  coin  of  the  realm,  thus : 
"divers,  to  wit,  three  tables  of  great  value,  to  wit,  the  value 
of  twenty  pounds  of  lawful  money  of  Great  Britain."  With 
respect  to  quantity,  it  should  be  specified  by  the  ordinary 
measures  of  extent,  weight  or  capacity,  thus:  "divers,  to  wit, 
fifty  acres  of  arable  land ; "  "  divers,  to  wit,  three  bushels  of 
wheat." 

§  196.  loose  construction  of  the  rule. —  The  rule  in  ques- 
tion, however,  is  not  so  strictly  construed  but  that  it  some- 
times admits  the  specification  of  quality  and  quantity  in  a 
loose  and  general  way.  Thus,  a  declaration  in  trover  for  two 
packs  of  flax,  and  two  packs  of  hemp,  without  setting  out  the 
weight  or  quantity  of  a  pack,  is  good  after  verdict,  and,  it 
seems,  even  upon  special  demurrer.  (<?)  So  a  declaration  in 
trover  for  a  library  of  books  has  been  allowed  without  ex- 
pressing what  they  were.  So  where  the  plaintiff  declared  in 
trespass  for  entering  his  house  and  taking  several  keys  for  the 
opening  of  the  doors  of  his  said  house,  it  was  objected,  after 
verdict,  that  the  kind  and  number  ought  to  be  ascertained. 
But  it  was  answered  and  resolved  that  the  keys  are  sufficiently 
ascertained  by  reference  to  the  house.  (d)  So  it  was  held, 
upon  special  demurrer,  that  it  was  sufficient  to  declare,  in  tres- 
pass for  breaking  and  entering  a  house,  damaging  the  goods 
and  chattels,  and  wrenching  and  forcing  open  the  doors,  with- 
out specifying  the  goods  and  chattels,  or  the  number  of  doors 
forced  open ;  for  that  the  essential  matter  of  the  action  was 
the  breaking  and  entering  of  the  house,  and  the  rest  merely 
aggravation,  (e) 

§  197.  Actions  to  which  the  rule  is  not  applicable.  — 
There  are  also  some  kinds  of  action  to  which  the  rule  requir- 
ing specification  of  quality,  quantity  and  value  does  not  apply 
in  modern  practice.  Thus,  in  actions  of  debt  and  indebitatus 
assumpsit  (f)  (where  a  more  general  form  of  -declaration  ob- 
tains than  in  most  other  actions),  if  the  debt  is  claimed  in 

(c)  2  Saund.  74  b,  n.  1. 

(d)  Layton  v.  Grindall,  2  Salk.  643;  and  see  many  other  instances,  2  Saund.  74  b,  n.  1. 
(f)  Chamberlain  v.  Greenfield,  3  Wils.  292. 

(/)  Indebitatus  assumpsit  is  that  species  of  the  action  of  assumpsit  in  which  the  plaintiff 
first  alleges  a  debt  and  then  a  promise  in  consideration  of  the  debt.  The  promise  so  laid  b 
generally  an  implied  one  only.  See  the  form  of  a  declaration  In  indebitatus  assumpsit, 
tupra,  p.  163. 


§  198.]  EULES   TO   PRODUCE    CERTAINTY   IN   ISSUE.  389 

respect  of  goods  sold,  etc.,  the  quality,  quantity  or  value  of 
the  goods  sold  is  never  specified.  The  amount  of  the  debt  or 
sura  of  money  due  upon  such  sale  must,  however,  be  shown. 

§  198.  Proof  need  not  correspond  with  averment. —  As 
with  respect  to  place  and  time,  so  with  respect  to  quantity  and 
value,  it  is  not  necessary,  when  these  matters  are  brought  into 
issue,  that  the  proof  should  correspond  with  the  averment.1 
The  pleader  may,  in  general,  allege  any  quantity  and  value 
that  he  pleases  (at  least  if  it  be  laid  under  a  videlicet),  without 
risk  from  the  variance  in  the  event  of  a  different  amount  being 
proved,  (g)  But  it  is  to  be  observed  that  a  verdict  cannot,  in 
general,  le  obtained  for  a  larger  quantity  or  value  than  is 
alleged.  The  pleader,  therefore,  takes  care  to  lay  them  to 
an  extent  large  enough  to  cover  the  utmost  case  that  can  be 
proved.  And  it  is  also  to  be  observed  that  as  with  respect 
to  place  or  time,  so  with  respect  to  quantity  or  value,  there 
may  be  instances  in  which  it  forms  part  of  the  substance  of 
the  issue,  and  there  the  amount  must  be  strictly  proved  as 
laid.2  For  example,  to  a  declaration  in  assumpsit  for  101.  4s. 
and  other  sums,  the  defendant  pleaded  as  to  all  but  41.  7$.  6d. 
the  general  issue,  and  as  to  the  41.  7$.  Qd.  a  tender.  The  plaint- 
iff replied  that  after  the  cause  of  action  accrued,  and  before 
the  tender,  the  plaintiff  demanded  the  said  sum  of  4.1.  7*.  6d., 
which  the  defendant  refused  to  pay ;  and  on  issue  joined  it 
was  proved  that  the  plaintiff  had  demanded  not  41.  Is.  Qd., 
but  the  whole  1.01.  4s.  This  proof  was  held  not  to  support 
the  issue,  (h) 

With  respect  to  the  allegation  of  quality,  this  generally  re- 
quires to  be  strictly  proved  as  laid,  (i) 

(g)  Crispin  v.  Williamson,  8  Taunt.  107. 
(h)  Rivers  v.  Griffith,  5  Barn.  &  Aid.  630. 
CO  See  Appendix,  note  (66). 

1  Rubens  v.  Stevens,  4  B.  &  Ad.  the  true  value  where,  by  mistake,  he 
241 ;  Chamblee  v.  McKenzie,  81  Ark.  has  alleged  it  incorrectly,  or  where 
155 ;  1  GreenL  Ev.,  §  61.  the  value  may  have  changed  since  the 

2  But  in  Iowa  the  question  of  value  allegation  was  made.  Reilly  v.  Ring- 
is  one  to  be  determined  by  proof.    A  land,  89  la,  106;  Gregory  v.  Wright, 
party  is  not  precluded  from  proving  11  Ab.  Pr.  417 ;  1  GreenL  Ev.,  §  61. 


390  EULES   TO   PRODUCE   CERTAINTY   IN   ISSUE.       [§§  199,  200. 

RULE  IV. 

§  199.  The  pleadings  must  specify  the  names  of  per- 
sons, (k)  — 

First,  this  rule  applies  to  the  parties  to  the  suit. 

The  original  writ  and  the  declaration  must  both  set  forth 
accurately  the  names  of  both  parties.  (7) l  The  plaintiff  must 
be  described  by  his  Christian  name  and  surname;  and  if  either 
be  mistaken  or  omitted  it  is  ground  for  a  plea  in  abatement.2 
The  case  is  the  same  with  respect  to  the  defendant.  If  either 
party  have  a  name  of  dignity,  such  as  earl,  etc.,  he  must  be 
described  accordingly;  and  an  omission  or  mistake  in  such  de- 
scription has  the  same  effect  as  in  the  Christian  name  and  sur- 
name of  an  ordinary  person,  (ra) 3 

Secondly,  the  rule  relates  to  persons  not  parties  to  the  suit 
of  whom  mention  is  made  in  the  pleading. 

The  names  of  such  persons,  viz. :  the  Christian  name  and  sur- 
name, or  name  of  dignity,  must  in  general  be  given;  but  if 
nat  within  the  knowledge  of  the  party  pleading,  an  allegation 
to  that  effect  should  be  made,  and  such  allegation  will  excuse 
the  omission  of  name,  (ri) 

§  200.  Effect  of  misnomer. —  A  mistake  in  the  name  of  a 
party  to  the  suit  is  ground  for  plea  in  abatement  only,4  and 
cannot  be  objected  as  a  variance  at  the  trial ;  but  the  name  of 
a  person  not  party  is  a  point  on  which  the  proof  must  corre- 
spond with  the  averment,  under  peril  of  a  fatal  variance.  Thus, 
where  a  bill  of  exchange  drawn  by  John  Couch  was  declared 
upon  as  drawn  by  John  Crouch,  and  the  defendant  pleaded 

(k)  Com.  Dig.,  Abatement  (E.  18),  (E.  19),  (F.  17),  (F.  18);  Com.  Dig.,  Pleader  (C.  18);  Bract. 
801  b. 

(0  Ibid. 

,  (m)  Com.  Dig.,  Abatement  (E.  SO),  (F.  19). 
(n)  Buckley  v.  Bice  Thomas,  Plow.  128. 

1Herf  v.  Shultze,  10  Ohio,  262;  resentative  capacity,  see  Henshall  v. 
Jackson  v.  Alexander,  8  Tex.  108;  Roberts,  5  East,  150;  Stillwell  v.  Car- 
Schmidt  v.  Thomas,  33  111.  App.  109;  penter,  62  N.  Y.  639;  Magee  v.  Su- 
Brent  v.  Shook,  36  111.  125.  pervisors  of  Waupaca  Co.,  38  Wis. 

2  Initials    of  the  Christian    name  247;  Beers  v.  Shannon,  73  N.  Y.  202; 
may  be  used  when  they  have  been  Beach  v.  King,  17  Wend.  197 ;  Hal- 
adopted  and  used.     Kemp  v.  McCor-  leek  v.  Mixer,  16  Cal.  577. 
mick,  1  Mont  420.   See  Plea  in  Abate-  4  See  supra,  Plea  in   Abatement; 
ment,  Misnomer.  Misnomer. 

8  As  to  where  one  is  sued  in  a  rep- 


§§  201,  202.]      EULES   TO   PRODUCE    CERTAINTY    IN    ISSUE.  391 

the  general  issue,  the  plaintiff  was  nonsuited.  (0)  So,  where 
the  declaration  stated  that  the  defendant  went  before  Rich- 
ard Cavendish,  Baron  "Waterpurk,  of  WaterforJc,  one  of  the 
justices,  etc.,  for  the  county  of  Stafford,  and  falsely  charged 
the  plaintiff  with  felony,  etc.,  and  upon  the  general  issue  it 
appeared  in  evidence  that  the  charge  was  made  before  Rich- 
ard Cavendish,  Baron  "Waterpark,  of  Waterpark,  this  was  held 
a  fatal  variance  in  the  name  of  dignity,  (p) 

EULE  V. 

§  201.  The  pleadings  must  show  title,  (q) ! — 

"When,  in  pleading,  any  right  or  authority  is  set  up  in  re- 
spect of  property,  personal  or  real,  some  title  to  that  property 
must,  of  course,  be  alleged  in  the  party,  or  in  some  other  per- 
son from  whom  he  derives  his  authority,  (r)  So,  if  a  party 
be  charged  with  any  liability  in  respect  of  property,  personal 
or  real,  his  title  to  that  property  must  be  alleged. 

It  is  proposed  first  to  consider  the  case  of  a  party's  alleg- 
ing title  in  himself,  or  in  another  whose  authority  he  pleads; 
next,  that  of  his  alleging  it  in  his  adversary. 

§  202.  I.  Of  the  case  where  a  party  alleges  title  in  him- 
self or  in  another  whose  authority  he  pleads  —  1.  It  is 
often  sufficient  to  allege  a  title  of  possession  only. —  The 
form  of  laying  a  title  of  possession  in  respect  of  goods  and 
chattels  is  either  to  allege  that  they  were  the  "goods  and 
chattels  of  the  plaintiff,"  or  that  he  was  "  lawfully  possessed 
of  them  as  of  his  own  property."  ($)  With  respect  to  cor- 
poreal hereditaments,  the  form  is  either  to  allege  that  the 
close,  etc.,  was  the  "close  of"  the  plaintiff,  (t)  or  that  he  was 

(o)  Whitwell  v.  Bennett,  3  Bos.  &  Pul.  659.  See,  also,  Bowditch  T.  Mawley,  1  Camp.  195; 
Hutchinson  v.  Piper,  4  Taunt.  810. 

(j>)  Walters  v.  Mace,  2  Barn.  &  Aid.  756. 

(g)  Com.  Dig.,  Pleader  (3  M.  9);  Bract  872  b,  873  b. 

(r)  Ibid. 

(«)  As  in  the  example,  supra,  pp.  164, 168. 

(*)  As  in  the  example,  tupra,  p.  161. 

1 May  v.  Attleboro  Bank,   19  III  acts  complained  of.    Smith  v.  Force, 

App.  604;  Malcolm  v.  O'Reilly,  89  31  Minn.  119.    In  an  action  of  eject- 

N.    Y.   156 ;    Smith    v.   Barclay,   54  ment,  possession  at  time  of  suit  must 

Minn.  47.    The  allegation  of  owner-  be  shown.    Cofer    v.   Schening,    98 

ship  should  relate  to  the  time  of  the  Ala.  338L 


392  RULES   TO   PRODUCE   CERTAINTY   IN   ISSUE.       [§§  203,  204:. 

"  lawfully  possessed  of  a  certain  close,"  etc.  (u)  "With  respect  • 
to  incorporeal  hereditaments,  a  title  of  possession  is  generally 
laid  by  alleging  that  the  plaintiff  was  possessed  of  the  cor- 
poreal thing  in  respect  of  which  the  right  is  claimed,  and  by 
reason  thereof  was  entitled  to  the  right  at  the  time  in  ques- 
tion; for  example, .that  he  "was  possessed  of  a  certain  mes- 
suage, etc.,  and  by  reason  thereof,  during  all  the  time  aforesaid, 
of  right  ought  to  have  had  common  of  pasture,  etc."  (x) 

§  203.  When  a  title  of  possession  is  applicable. —  A  title 
of  possession  is  applicable,  that  is,  will  be  sufficiently  sustained 
by  the  proof,  in  all  cases  where  the  interest  is  of  a  present  and 
immediate  kind.  Thus,  when  a  title  of  possession  is  alleged 
with  respect  to  goods  and  chattels,  the  statement  will  be  sup- 
ported by  proof  of  any  kind  of  present  interest  in  them,  whether 
that  interest  be  temporary  and  special  or  absolute  in  its  nat- 
ure; as,  for  example,  whether  it  be  that  of  a  carrier  or  finder 
only,  or  that  of  an  owner  and  proprietor,  (y)  So  where  a 
title  of  possession  is  alleged  in  respect  of  corporeal  or  incor- 
poreal hereditaments,  it  will  be  sufficiently  maintained  by  prov- 
ing any  kind  of  estate  in  possession,  whether  fee-simple,  fee-tail, 
for  life,  for  term  of  years,  or  otherwise.  On  the  other  hand, 
with  respect  to  any  kind  of  property,  a  title  of  possession 
would  not  be  sustained  in  evidence  by  proof  of  an  interest  in 
remainder  or  reversion  only ;  and  therefore  when  the  interest 
is  of  that  description  the  preceding  forms  are  inapplicable, 
and  title  must  be  laid  in  remainder  or  reversion,  according  to 
the  fact,  and  upon  the  principles  that  will  be  afterwards 
stated  on  the  subject  of  alleging  title  in  its  full  and  precise 
extent. 

§  204.  If  title  of  possession  is  applicable  the  allegation 
thereof  is  often  sufficient. —  Where  a  title  of  possession  is 
applicable  the  allegation  of  it  is  in  many  cases  sufficient  in 
pleading  without  showing  title  of  a  superior  kind.  The  rule  on 
this  subject  is  as  follows :  That  it  is  sufficient  to  allege  posses- 
sion as  against  a  wrong-doer,  (z)  *  or,  in  other  words,  that  it  is 

(u)  See  an  example,  2  Chitty,  631. 

(.x)  See  an  example,  2  Chitty,  854. 

GO  2  Saund.  47  a,  n.  1. 

Or)  Com.  Dig.,  Pleader  (C.  39),  (C.  41);  Taylor  v.  Eastwood,  1  East,  218. 

1  See  Trespasa    See,  also,  Langford  v.  Webber,  3  Mod.  132. 


§  204.]  ETJLES   TO  PEODUCE    CERTAINTY    IN   ISSUE.  393 

enough  to  lay  a  title  of  possession  against  a  person  who  is 
stated  to  have  committed  an  injury  to  such  possession,  having, 
as  far  as  it  appears,  no  title  himself.     Thus,  if  the  plaintiff  de- 
clare in  trespass  for  breaking  and  entering  his  close,  or  in  tres- 
pass on  the  case  for  obstructing  his  right  of  way,  it  is  enough 
to  allege  in  the  declaration  in  the  first  case  that  it  is  the  "  close 
of  the  plaintiff,"  (a)  in  the  second  case  that  "  he  was  possessed 
of  a  certain  messuage,  etc.,  and  by  reason  of  such  possession 
of  right  ought  to  have  had  a  certain  way,"  etc.     For  if  the 
case  was  that  the  plaintiff  being  possessed  of  the  close,  the  de- 
fendant, having  himself  no  title,  broke  and  entered  it,  or  that 
the  plaintiff  being  possessed  of  a  messuage  and  right  of  way, 
the  defendant,  being  without  title,  obstructed  it,  then  whatever 
was  the  nature  and  extent  of  the  plaintiff's  title  in  either  case, 
the  law  will  give  him  damages  for  the  injury  to  his  possession ; 
and  it  is  the  possession,  therefore,  only  that  needs  to  be  stated. 
It  is  true  that  it  does  not  yet  appear  that  the  defendant  had 
no  title,  and  by  his  plea  he  may  possibly  set  up  one  superior 
to  that  of  the  plaintiff;  but  as,  on  the  other  hand,  it  does  not 
yet  appear  that  he  had  title,  the  effect  is  the  same,  and  till  he 
pleads  he  must  be  considered  as  a  mere  wrong-doer;  that  is,  he 
must  be  taken  to  have  committed  an  injury  to  the  plaintiff's 
possession  without  having  any  right  himself.    Again,  in  an  ac- 
tion of  trespass  for  assault  and  battery,  if  the  defendant  justify 
on  the  ground  that  the  plaintiff  wrongfully  entered  his  house 
and  was  making  a  disturbance  there,  and  that  the  defendant 
gently  removed  him,  the  form  of  the  plea  is  that  "  the  de- 
fendant was  lawfully  possessed  of  a  certain  dwelling-house, 
etc.,  and  being  so  possessed  the  said  plaintiff  was  unlawfully 
in  the  said  dwelling-house,"  etc. ;  (5)  and  it  is  not  necessary  for 
the  defendant  to  show  any  title  to  the  house  beyond  this  of 
mere  possession.     For  the  plaintiff  has  at  present  set  up  no 
title  at  all  to  the  house,  and  on  the  face  of  the  plea  he  has 
committed  an  injury  to  the  defendant's  possession  without 
having  any  right  himself.     So  in  an  action  of  trespass  for  seiz- 
ing cattle,  if  the  defendant  justify  on  the  ground  that  the 
cattle  were  damage  feasant  on  his  close,  it  is  not  necessary  for 

(a)  See  the  form  of  the  declaration,  supra,  p.  isi. 
(6)  2  Chitty,  623. 


394r  ETJLES   TO   PRODUCE   CERTAINTY   IN   ISSUE.  [§  205. 

him  to  show  any  title  to  his  close  except  that  of  mere  pos- 
session, (c) 

It  is  to  be  observed,  however,  with  respect  to  this  rule  as  to 
alleging  possession  against  a  wrong-doer,  that  it  seems  not  to 
hold  in  replevin.  For,  in  that  action,  it  is  held  not  to  be  suffi- 
cient to  state  a  title  of  possession,  even  in  a  case  where  it 
would  be  allowable  in  trespass  by  virtue  of  the  rule  above 
mentioned.  Thus,  in  replevin,  if  the  defendant  plead  that  he 
was  possessed  of  a  messuage  and  entitled  to  common  of  past- 
ure as  appurtenant  thereto,  and  that  he  took  the  cattle  dam- 
age feasant,  it  seems  that  this  pleading  is  bad,  and  that  it  is 
not  sufficient  to  lay  such  mere  title  of  possession  in  this  ac- 
tion, (d)  It  is  to  be  observed,  too,  that  this  rule  has  little  or 
no  application  in  real  or  mixed  actions,  for  in  these  an  injury 
to  the  possession  is  seldom  alleged ;  the  question  in  dispute 
being,  for  the  most  part,  on  the  right  of  possession  or  the  right 
of  property. 

§205.  When  not  sufficient  to  allege  possession. —  Where 
this  rule  as  to  alleging  possession  against  a  wrong-doer  does 
not  apply,  there,  though  the  interest  be  present  or  possessory, 
it  is,  in  general,  not  sufficient  to  state  a  title  of  possession, 
but  some  superior  title  must  be  shown.  Thus,  in  trespass  for 
breaking  the  plaintiff's  close,  if  the  defendant's  justification 
be  that  the  close  was  his  own  copyhold  estate  of  inherit- 
ance, his  plea,  as  it  does  not  make  the  plaintiff  a  wrong-doer, 
but,  on  the  contrary,  admits  his  possessory  title  in  the  close, 
and  pleads  in  confession  and  avoidance  of  it,  must  allege  not 
merely  a  possession  but  a  seisin  in  fee  of  the  copyhold.  So 
in  a  similar  action,  if  the  defendant  rely  on  a  right  of  way 
over  the  plaintiff's  close,  it  will  not  be  sufficient  to  plead  that 
he,  the  defendant,  was  lawfully  possessed  of  another  close  and 
by  reason  of  such  possession  was  entitled  to  a  right  of  way 
over  the  plaintiff's,  but  he  must  set  forth  some  superior  title 
to  his  close  and  right  of  way  —  as,  for  example,  that  of  seisin 
in  fee  of  the  close  and  a  prescription  in  a  que  estate  (e)  to  the 

(c)  2  Saund.  285,  n.  8;  Anon.,  2  Salk.  643;  Sea/1  v.  Bunnion,  2  Mod.  70;  Langford  v.  Web- 
ber, 3  Mod.  182. 

(d)  Hawkins  v.  Secies,  2  Bos.  &  Pul.  359,  361,  n.  a;  2  Saund.  285,  n.  8;  Saunders  v.  Him- 
gey,  2  Lut.  1231;  Carth.  9;  1  Lord  Raym.  332,  S.  O.;  1  Saund.  347  b,  n.  8. 

(«)  AH  to  prescription  in  a  que  estate,  see  2  Bl.  Com.  264. 


§§  206,  207.]      EULES   TO   PRODUCE    CERTAINTY   IN   ISSUE.  395 

right  of  way.  (/)  With  respect  to  the  manner  of  stating  a 
superior  title  to  that  of  possession,  it  will  be  shown  under  the 
following  head  relative  to  the  allegation  of  title  in  its  full 
and  precise  extent. 

§  206.  When  the  title  must  be  alleged  in  its  full  extent. 
2.  Where  a  title  of  possession  is,  upon  the  principles  above  ex- 
plained, either  not  applicable  or  not  sufficient,  the  title  should 
in  general  be  stated  in  its  full  and  precise  extent. 

Upon  this  head  two  subjects  of  remark  present  themselves  — 
the  allegation  of  the  title  itself  and  the  statement  of  its  deri- 
vation. 

With  respect  to  the  allegation  of  the  title  itself,  there  are 
certain  forms  used  in  pleading  appropriate  to  each  different 
kind  of  title,  according  to  all  the  different  distinctions  as  to 
tenure,  quantity  of  estate,  time  of  enjoyment,  and  number  of 
owners,  (cj)  These  forms  are  too  various  to  be  here  stated ;  and 
it  will  be  sufficient  to  refer  the  reader  to  the  copious  stores  in 
the  printed  precedents.  (K) l 

§  207.  With  respect  to  the  derivation  of  the  title,  there 
are  certain  rules  of  which  it  will  be  necessary  to  give  some 
account. 

There  is  a  leading  distinction  on  this  subject  between  estates 
in  fee-simple  and  particular  estates. 

In  general,  it  is  sufficient  to  state  a  seisin  in  fee-simple, — 
per  se;  that  is,  simply  to  state  (according  to  the  usual  form 
of  alleging  that  title)  that  the  party  was  "  seised  in  his  de- 
mesne as  of  fee  of  and  in  a  certain  messuage,"  etc.,  (i)  without 
showing  the  derivation,  or  (as  it  is  expressed  in  pleading)  the 
commencement  of  the  estate.  (&)  For  if  it  were  requisite  to 
show  from  whom  the  present  tenant  derived  his  title,  it  might 
be  required,  on  the  same  principles,  to  show  from  whom  that 
person  derived  his,  and  so  ad  infinitum.  Besides,  as  mere 
seisin  will  be  sufficient  to  give  an  estate  in  fee-simple,  the 
estate  may,  for  anything  that  appears,  have  had  no  other 
commencement  than  the  seisin  itself,  which  is  alleged.  So, 

(/)  See  the  form,  2  Chitty,  573. 

(0)  Vide  2  BL  Com.  103;  2  Chitty,  244-258. 
Cfc)  See  2  Chitty,  ibid. 

(1)  As  in  the  examples  supra,  pp.  154,  289. 

(!b)  Co.  Litt.  303  b;  Savage  v.  Hawkins,  Cro.  Car.  OTL 

1  See  the  title  of  the  various  forms  of  action  in  notes, 


396  RULES    TO   PRODUCE    CERTAINTY   IN    ISSUE.  [§  208. 

though  the  fee  be  conditional  or  determindble  on  a  certain 
event,  yet  a  seisin  in  fee  may  be  alleged,  without  showing  the 
commencement  of  the  estate.  (I) 

However,  it  is  sometimes  necessary  to  show  the  derivation 
of  the  fee,  viz.,  where,  in  the  pleading,  the  seisin  has  already 
been  alleged  in  another  person  from  whom  the  present  party 
claims.  In  such  case  it  must  of  course  be  shown  how  it 
passed  from  one  of  these  persons  to  the  other.  Thus,  in  debt 
or  covenant  brought  on  an  indenture  of  lease  by  the  heir  of 
the  lessor,  the  plaintiff,  having  alleged  that  his  ancestor  was 
seised  in  fee  and  made  the  lease,  must  proceed  to  show  how 
the  fee  passed  to  himself,  viz.,  by  descent,  (ra)  So  if,  in  tres- 
pass, the  defendant  plead  that  E.  F.,  being  seised  in  fee,  de- 
mised to  G.  H.,  under  whose  command  the  defendant  justifies 
the  trespass  on  the  land  (giving  color);  and  the  plaintiff  in 
his  replication  admits  E.  F.'s  seisin,  but  sets  up  a  subsequent 
title  in  himself  to  the  same  land,  in  fee-simple,  prior  to  the 
alleged  demise,  he  must  show  the  derivation  of  the  fee  from 
E.  F.  to  himself  by  conveyance  antecedent  to  the  lease  under 
which  G.  H.  claims,  (ri) 

§  208.  With  respect  to  particular  estates,  the  general 
rule  is  that  the  commencement  of  particular  estates  must  be 
shown.  (0)  If,  therefore,  a  party  sets  up  in  his  own  favor  an 
estate  tail,  an  estate  for  life,  a  term  of  years,  or  a  tenancy 
at  will,  he  must  show  the  derivation  of  that  title  from  its  com- 
mencement, that  is,  from  the  last  seisin  in  fee-simple;  and  if 
derived  by  alienation  or  conveyance,  the  substance  and  effect 
of  such  conveyance  should  be  precisely  set  forth.  For  ex- 
amples of  the  manner  of  thus  showing  the  commencement  of 
particular  estates,  under  all  the  different  kinds  of  conveyances, 
and  other  media  of  title,  the  reader  must  again  have  recourse 
to  the  books  of  precedents,  (p) 

Under  this  rule,  that  the  commencement  of  particular  estates 
must  be  shown,  it  is  necessary  to  show  the  commencement  of 

t 

G)  Doct  PL  287. 

(m)  As  in  the  example  supra,  p.  289. 

(n)  See  Upper  Bench  Precedents,  196,  cited  9  Went.;  Index,  xL,  xM. 
(o)  Co.  Litt.  303  b;    Scilly  v.  Dally,  2Salk.  662;  Garth.  444,  S.  C.;  Searl  T.  Bunnion,  a 
Mod.  70;  Johns  T.  Whltley,  3  Wils.  72;  Hendy  v.  Stephenson,  10  East,  60;  Bast  Eat.  666. 
(p)  SeeSChitty,  213-232. 


§  209.]  ETJLES   TO    PRODUCE    CERTAINTY    IN    ISSUE.  397 

a  copyhold,  even  though  it  be  copyhold  of  inheritance.  (g) 
This  is  on  the  ground  that  a  copyhold,  even  in  fee,  is  in  the 
nature  of  a  particular  estate  in  respect  of  the  freehold  inher- 
itance in  the  lord.  And  the  difficulty  that  would  arise,  if  the 
title  were  to  be  deduced  from  the  earliest  or  original  grantee, 
is  obviated  by  the  practice  of  going  back  to  the  admittance  of 
the  last  heir  or  surrenderee  only ;  which  admittance  is  con- 
sidered as  in  the  nature  of  a  grant  from  the  lord,  and  is  so 
pleaded,  (r)  It  is  in  this  manner  that  the  commencement  of 
a  cop37hold  estate  is  in  general  alleged,  namely,  by  stating  it 
as  a  grant  from  the  lord ;  but  where  an  estate  has  been  already 
laid  in  another  copyholder,  from  whom  the  present  party 
claims,  and  it  becomes  necessary,  therefore,  to  show  how  the 
estate  passed  from  one  to  the  other,  the  conveyances  by  sur- 
render between  the  copyhold  tenants  and  the  admittance  by 
the  lord,  etc.,  must  then  be  set  forth  according  to  the  fact,  (s) 

To  the  rule  that  the  commencement  of  particular  estates  must 
be  shown  there  is  this  exception:  that  it  need  not  be  shown 
where  the  title  is  alleged  by  way  of  inducement  only,  (t)  Thus 
if  an  action  of  debt  or  covenant  be  brought  on  an  indenture 
of  lease  by  the  executor  or  assignee  of  a  lessor  who  had  been 
entitled  for  a  term  of  years,  it  is  necessary  in  the  declaration 
to  state  the  title  of  the  lessor,  in  order  to  show  that  the 
plaintiff  is  entitled  to  maintain  the  action  as  his  representa- 
tive or  assignee.  But  as  the  title  is  in  that  case  alleged  by 
way  of  inducement  only  (the  action  being  mainly  founded  on 
the  lease  itself),  the  particular  estate  for  years  may  be  alleged 
in  the  lessor,  without  showing  its  commencement. 

§  209.  Additional  rules  on  derivation  of  title. —  On  the 
subject  of  the  derivation  of  title,  the  following  additional  rules 
may  be  collected  from  the  books: 

First,  where  a  party  claims  by  inheritance  he  must,  in  general, 
show  how  he  is  heir,  viz.,  as  son  or  otherwise ;  (u)  and  if  he 
claims  by  mediate,  not  immediate,  descent,  he  must  show  the 

(q)  Pyster  v.  Hemling,  Cro.  Jac.  103;  Shepheard's  Case,  Cro.  Car.(190;  Robinson  v.  Smith, 
4  Mod.  346. 

(r)  See  same  cases,  and  Brown's  Case,  4  Rep.  22  b;  Bac.  Ab.,  Pleas,  etc.,  p.  422,  5tfc  «L 

(s)  See  the  forms,  2  Chitty,  205,  229. 

(t)  Com.  Dig.,  Pleader  (E.  19),  (C.  43);  Blockley  v.  Slater,  Lutw.  120:  Searl  v.  Bunnion, 
2  Mod.  70;  Scillyv.  Dally,  Carth.  444. 

(it)  Denham  v.  Stephensou,  1  Salk.  355;  Duke  of  Newcastle  v.  Wright,  1  Lev.  190;  1  Lord 
Raym.  202.    See  the  example  supra,  p.  289. 
26 


398 


EULES    TO   PEODUCE    OEETAINTY   IN   ISSUE.  [§  209. 


pedigree;  for  example,  if  he  claims  as  nephew,  he  must  show 
how  nephew,  (so) 

Secondly,  where  a  party  claims  by  conveyance  or  alienation, 
the  nature  of  the  conveyance  or  alienation  must,  in  general,  fie 
stated,  as  whether  it  be  by  devise,  feoffment,  etc.  (y) 

Thirdly,  the  nature  of  the  conveyance  or  alienation  should  b& 
stated  according  to  its  legal  effect  rather  than  its  form  of  words. 
This  depends  on  a  more  general  rule,  which  we  shall  have 
occasion  to  consider  in  another  place,  viz.,  "  that  things  are  to 
be  pleaded  according  to  their  legal  effect  or  operation."  For 
the  present  the  doctrine,  as  applicable  to  conveyances,  may  be 
thus  illustrated.  In  pleading  a  conveyance  for  life,  with  livery 
of  seisin,  the  proper  form  is  to  allege  it  as  a  "  demise  "  for 
life,  (3)  for  such  is  its  effect  in  proper  legal  description.  So,  a 
conveyance  in  tail,  with  livery,  is  always  pleaded  (on  the 
same  principle)  as  a  "  gift "  in  tail ;  (a)  and  a  conveyance  of 
the  fee,  with  livery,  is  described  by  the  term  "  enfeoffed."  (b) 
And  such  would  be  the  form  of  pleading,  whatever  might  be 
the  words  of  donation  used  in  the  instrument  itself;  which,  in 
all  the  three  cases,  are  often  the  same,  viz.,  those  of  "  give  " 
and  "  grant."  (c)  So,  in  a  conveyance  by  lease  and  release, 
though  the  words  of  the  deed  of  release  be  "  grant,  bargain, 
sell,  alien,  release  and  confirm,"  yet  it  should  be  pleaded  as  a 
release  only,  for  that  is  the  legal  effect,  (d) 

Fourthly,  where  the  nature  of  the  conveyance  is  such  that  it 
would,  at  common  law,  ~be  valid  without  deed  or  writing,  there 
no  deed  or  writing  need  be  alleged  in  the  pleading,  though  such 
document  may  in  fact  exist;  but  where  the  nature  of  the  con- 
veyance requires,  at  common  law,  a  deed  or  other  written  instru- 
ment, such  instrument  must  be  alleged,  (e)  Therefore  a  con- 
veyance, with  livery  of  seisin,  either  in  fee,  tail,  or  for  life,  is 

fart  Dumsday  v.  Hughes,  8  Bos.  &  Pul.  463;  Blackborough  v.  Davis,  12  Mod.  619i 

(10  Bee  Com.  Dig.,  Pleader  (E.  23),  (E.  24). 

(4 'East.  Ent.  647  a,  11  d. 

(a)  See  Co.  Ent.,  tit.  Formedon,  etc.,  etc. 

(ft)  Upper  Bench  Prec.  196.  See  2  Chitty,  214.  "  Feoffment  properly  betokeneth  a  con- 
veyance in  fee,  and  yet,  sometimes  improperly,  it  is  called  a  feoffment  when  an  estate  of 
freehold  only  doth  pass."  Co.  Litt.  9  a.  Feoffare  dicitur,  qui  feodum  simplex,  feoffatorio 
confert;  donare,  qui  feodum  talliatum.  Spelm.  Gloss.,  verbo  Feoffare.  And  Ix>rd  Coke,  in 
another  place,  makes  the  distinction  laid  down  hi  the  text  between  feoffment,  gift  and  do- 
mUe.  8  Rep.  82,  b. 

(c)  "  Do  or  dedi  is  the  aptest  word  of  feoffment."    Co.  Litt.  9  a. 

(d)  2  Chitty,  220  note(t);  1  Arch.  127;  3  Went.  483,  515. 

(e)  Yin.  Ab.,  Fails  or  Deeds  (M.  a,  11). 


§  209.]  EULES   TO   PRODUCE   CERTAINTY   IN    ISSUE.  399 

pleaded  without  alleging  any  charter  or  other  writing  of 
feoffraent,  gift  or  demise,  whether  such  instrument  in  fact 
accompanied  the  conveyance  or  not.  For  such  conveyance 
might,  at  common  law,  be  made  by  parol  only ;  (f)  and  though, 
by  the  statute  of  frauds  (29  Car.  II.,  ch.  3,  sec.  1),  it  will  not 
now  be  valid  unless  made  in  writing,  yet  the  form  of  pleading 
remains  the  same  as  before  the  act  of  parliament,  (g)  On  the 
other  hand,  a  devise  of  lands  (which  at  common  law  was  not 
valid,  and  authorized  only  by  the  statutes  32  Hen.  8,  ch.  1,  and 
34  Hen.  8,  ch.  5)  must  be  alleged  to  have  been  made  in  writ- 
ing (h}  —  which  is  the  only  form  in  which  the  statutes  author- 
ize it  to  be  made.  So,  if  a  conveyance  by  way  of  grant  be 
pleaded,  a  deed  must  be  alleged;  (i)1  for  matters  that  "lie  in 
grant"  (according  to  the  legal  phrase)  can  pass  by  deed 
only.  (&). 

There  is  one  case,  however,  in  which  a  deed  is  usually  alleged 
in  pleading,  though  not  necessary  at  common  law  to  the  con- 
veyance, and  which,  therefore,  in  practice  at  least,  forms  an 
exception  to  the  above  rule.  For  in  making  title  under  a 
lease  for  years  by  indenture,  it  is  usual  to  plead  the  indent- 
ure, (1)  though  the  lease  was  good  at  common  law,  by  parol, 
and  needs  to  be  in  writing  only  where  the  term  is  of  more 
than  three  years'  duration,  and  then  only  by  the  statute  of 
frauds. 

There  is  also  another  excepted  case,  in  which  (on  the  other 
hand)  it  is  not  necessary  to  allege  a  deed,  though  the  common 
law  require  one.  For  in  pleading  a  demise  by  husband  and 
wife,  it  is  not  necessary  to  show  that  it  was  by  deed;  and  yet, 
both  by  common  law  and  by  statute,  such  demise  can  be  by 
deed  only,  (m) 

Thus  far  with  respect  to  the  allegation  of  title  in  its  full 
and  precise  extent.  Another  mode,  however,  of  laying  title, 
still  remains  to  be  considered. 

(/)  Vin.  Ab.,  Feoffment  (Y.);  Co.  LItt.  121  b, 

(g)  This  depends  upon  a  more  general  rule,  which  wfll  be  noticed  hereafter  in  its  proper 
place. 

(h)  1  Saund.  276  a,  n.  2. 

(i)  Porter  v.  Gray,  Cro.  Eliz.  245;  1  Saund.  234,  n.  8. 

(fc)  Vin.  Ab.,  tit.  Grants  (G.  &). 

(J)  See  the  example,  2  Chitty,  555. 

(m)  2  Saund.  180  b;  Wiscot's  Case,  2  Rep.  61  b;  Dyer,  91  b;  Bateman  v.  Allen,  Cro.  Eliz. 
438;  Childs  v.  Wescott,  id.  482. 

1  Lathbury  v.  Arnold,  1  Bing.  217. 


400  RULES    TO   PRODUCE    CERTAINTY   IN   ISSUE.  [§  210. 

§  210.  Plea  of  liberum  tenementum. —  3.  Where  a  title  of 
possession  is  inapplicable  or  insufficient,  it  is  not  always  nec- 
essary to  allege  the  title  in  its  full  and  precise  extent;  for  in 
lieu  of  this  it  is  occasionally  sufficient  to  allege  what  may  be 
called  a  general  freehold  title.  In  a  plea  in  trespass  quare 
clausum  fregit,  or  an  avowry  in  replevin,  (n)  if  the  defendant 
claim  an  estate  of  freehold  in  the  locus  in  quo,  he  is  allowed 
to  plead  generally  that  the  place  is  his  "  close,  soil  and  free- 
hold" This  is  called  the  plea  or  avowry  of  liberum  tenemen- 
tum, and  it  may  be  convenient  here  to  give  the  form  of  it. 

PLEA 

Of  Liberum  Tenementum. 
In  trespass  quare  clausum  fregit. 

And  for  a  farther  plea  in  this  behalf,  as  to  the  breaking  and 
entering  the  said  close,  in  which,  etc.,  in  the  said  declaration 
mentioned,  and  with  feet  in  walking,  treading  down,  tramp- 
ling upon,  consuming  and  spoiling  the  grass  and  herbage  then 
and  there  growing,  the  said  C.  D.,  by  leave  of  the  court  here 
for  this  purpose  first  had  and  obtained,  according  to  the  form 
of  the  statute  in  such  case  made  and  provided,  says  that  the 
said  A.  B.  ought  not  to  have  or  maintain  his  aforesaid  action 
thereof  against  him ;  because  he  says  that  the  said  close  in 
the  said  declaration  mentioned,  and  in  which,  etc.,  now  is  and 
at  the  said  several  times  when,  etc.,  was  the  close,  soil  and 
freehold  of  him,  the  said  C.  D.  Wherefore  he,  the  said  C.  D., 
at  the  said  several  times  when,  etc.,  broke  and  entered  the 
said  close,  in  which,  etc.,  and  with  feet  in  walking,  trod  down, 
trampled  upon,  consumed  and  spoiled  the  grass  and  herbage 
then  and  there  growing,  as  he  lawfully  might  for  the  cause 
aforesaid,  which  are  the  same  trespasses  in  the  introductory 
part  of  this  plea  mentioned,  and  whereof  the  said  A.  B.  hath 
above  complained.  And  this  the  said  C.  D.  is  ready  to  verify. 
Wherefore  he  prays  judgment  if  the  said  A.  B.  ought  to  have 
or  maintain  his  aforesaid  action  thereof  against  him.  (o) 

This  allegation  of  a  general  freehold  title  will  be  sustained 
by  proof  of  any  estate  of  freehold,  whether  in  fee,  in  tail,  or 
for  life  only,  and  whether  in  possession  or  expectant  oil  the 
determination  of  a  term  of  years,  (p)  But  it  does  not  apply 

(n)  1  Saund.  847  d,  n.  0. 

(o)  2  Chitty,  551. 

(  p)  See  5  Hen.  7, 10  a,  pL  2,  which  shows  that  where  there  is  a  lease  for  years,  it  most 
be  replied  in  confession  and  avoidance,  and  is  no  ground  for  traversing  the  plea  of  liberum 
tenementum. 


§  211.]  KULES   TO   PRODUCE    CERTAINTY   IN    ISSUE.  401 

to  the  case  of  a  freehold  estate  in  remainder  or  reversion  ex- 
pectant on  a  particular  estate  of  freehold,  nor  to  copyhold 
tenure. 

The  plea  or  avowry  of  liberum  tenementum  is  the  only  case 
of  usual  occurrence  in  modern  practice  in  which  the  allegation 
of  a  general  freehold  title  in  lieu  of  a  precise  allegation  of  title 
is  sufficient.  (#) l 

In  alleging  a  general  freehold  title  it  is  not  necessary,  as 
appears  by  the  above  example,  to  show  its  commencement. 

§  211.  Where  a  party  alleges  title  in  his  adversary.— 

II.  Having  discussed  the  case  where  a  party  alleges  title  in 
himself  or  some  other  whose  authority  he  pleads,  next  is  to  be 
considered  the  case  where  a  party  alleges  title  in  his  adver- 
sary. 

The  rule  on  this  subject  appears,  in  general,  to  be  that  it  is 
not  necessary  to  allege  title  more  precisely  than  is  sufficient  to 
xhow  a  liability  in  the  party  charged.  Except  as  far  as  this 
object  may  require,  a  party  is  not  compellable  to  show  the 
precise  estate  which  his  adversary  holds,  and  out  of  which  his 
liability  arises ;  even  in  a  case  where,  if  the  same  person  were 
pleading  his  own  title,  such  precise  allegation  would  be  neces 
sary.  The  reason  of  this  difference  is  that  a  party  must  bo 
presumed  to  be  ignorant  of  the  particulars  of  his  adversary's 
title,  though  he  is  bound  to  know  his  own.  (r) 

To  answer  the  purpose  of  showing  a  liability  in  the  party 
charged,  according  to  the  rule  here  given,  it  is,  in  most  cases, 
sufficient  to  allege  a  title  of  possession,  the  forms  of  which  are 
similar  to  those  in  which  the  same  kind  of  title  is  alleged  in 
favor  of  the  party  pleading. 

A  title  of  possession,  however,  cannot  be  sustained  in  evi- 
dence except  by  proving  some  present  interest  in  chattels,  or 

(q)  See  1  Saund.  847  d,  n.  6.  This  form  of  allegation  occurred,  however,  In  the  now 
disused  actions  of  assise,  the  count  or  plaint  in  which  lays  only  a  general  freehold  title, 
Dock.  PI.  289. 

(r)  Rider  v.  Smith,  8  T.  R  766;  Derisby  v.  Custance,  4  T.  R.  77;  Attorney-General  v.  Mel- 
ler,  Hardr.  459. 

i  Roberts  v.  Taylor,  1  M.,  G.  &  S.  Dec.  98;   Tribble  v.  Frame,  7  J.  J. 

126;  Forb  Dearborn  Lodge  v.  Klein,  Marsh.  599,  23  Am.  Dec.  489.     As  to 

115  111.  177;  Floyd  v.  Ricks,  14  Ark.  how  far  judgment  on  this  plea  is  res 

286,  58  Am.  Dec.  374;    Crockett  v.  adjudicata,  Elson  v.  Comstock,  150 

Lashbrook,  5  T.  B.  Mon.  531,  17  Am.  Ill  30& 


402  EULES   TO   PRODUCE    CERTAINTY   IN    ISSUE.  [§  212. 

actual  possession  of  land.  (5)  If,  therefore,  the  interest  be  by 
way  of  reversion  or  remainder,  it  must  be  laid  accordingly, 
and  the  title  of  possession  is  inapplicable.  So  there  are  cases 
in  which,  to  charge  a  party  with  mere  possession,  would  not 
be  sufficient  to  show  his  liability.  Thus,  in  declaring  against 
him,  in  debt  for  rent,  as  assignee  of  a  term  of  years,  it  would 
not  be  sufficient  to  show  that  he  was  possessed,  but  it  must 
be  shown  that  he  was  possessed  as  assignee  of  the  term. 

§  212.  Title  of  an  adversary  need  not  be  alleged  with 
great  precision. —  "Where  a  title  of  possession  is  thus  inap- 
plicable or  insufficient,  and  some  other  or  superior  title  must 
be  shown,  it  is  yet  not  necessary  to  allege  the  title  of  an  adver- 
sary with  as  much  precision  as  in  the  case  where  a  party  is 
stating  his  own ;  (£)  and  it  seems  sufficient  that  it  be  laid  fully 
enough  to  show  the  liability  charged.  Therefore,  though  it 
seems,  in  general,  to  be  the  rule,  with  respect  to  the  title  of 
an  adversary,  as  well  as  a  man's  own  title,  that  the  commence- 
ment of  particular  estates  should  be  shown,  (u)  unless  alleged  by 
way  of  inducement,  (a?)  yet  it  is  not  necessary  to  show  so  pre- 
cisely the  derivation  of  that  particular  estate  to  the  party. 
Thus,  in  debt,  where  the  defendant  is  charged  for  rent,  as 
assignee  of  the  term,  after  several  mesne  assignments,  it  is 
sufficient,  after  stating  the  original  demise,  to  allege  that 
"  after  making  the  said  indenture,  and  during  the  term  thereby 

granted,  to  wit,  on  the day  of ,  in  the  year ,  at 

,  all  the  estate  and  interest  of  the  said  E.  F."  (the  origi- 
nal lessee)  "  of  and  in  the  said  demised  premises,  by  assign- 
ment, came  to  and  vested  in  the  said  0.  D."  without  further 
showing  the  nature  of  the  mesne  assignments,  (y)  But  if  the 
case  be  reversed,  that  is,  if  the  plaintiff,  claiming  as  assignee 
of  the  reversion,  sue  the  lessee  for  rent,  he  must  precisely 
show  the  conveyances  or  other  media  of  title  by  which  he  be- 
came entitled  to  the  reversion ;  and  to  say,  generally,  that  it 
came  by  assignment,  will  not,  in  this  case,  be  sufficient  with- 
out circumstantially  alleging  all  the  mesne  assignments,  (s) 

(s)  Vide  supra,  pp.  892,  393. 
(t)  Com.  Dig.,  Pleader  (C.  42). 
(u)  Vide  supra,  p.  395. 
(x)  Vide  supra,  p.  397. 

(y)  1  Saund.  112,  note  1;  Attorney-Gen,  v.  Meller,  Hardr.  459;  Duke  of  Newcastle  T.  Wright, 
1  Lev.  190;  Derisby  v.  Custance,  4  T.  R.  77;  2  Chitty,  196. 
(z)  1  Saund.  112,  note  1;  Pitt  v.  Russell,  3  Lev.  19. 


§§  213,  214.]       RULES   TO   PRODUCE    CERTAINTY   IN   ISSUE. 

Upon  the  same  principle,  if  title  be  laid  in  an  adversary  by 
descent,  as,  for  example,  where  an  action  of  debt  is  brought 
against  an  heir  on  the  bond  of  his  ancestor,  it  is  sufficient  to 
charge  him  as  heir,  without  showing  how  he  is  heir,  viz. :  as  son 
or  otherwise;  (a)  but  if  a  party  entitle  himself  by  inheritance, 
we  have  seen  that  the  mode  of  descent  must  be  alleged.  (5) 

§  213.  On  issue  the  title  alleged  must  be  strictly  proved. 
The  manner  of  showing  title,  both  where  it  is  laid  in  the 
party  himself  or  the  person  whose  authority  he  pleads,  and 
where  it  is  laid  in  his  adversary,  having  been  now  considered, 
it  may  next  be  observed  that  the  title  so  shown  must,  in 
general,  when  issue  is  taken  upon  it,  be  strictly  proved.  With 
respect  to  the  allegations  of  place,  time,  quantity  and  value,  it 
has  been  shown  that,  when  issue  is  take  upon  them,  they,  in 
most  cases,  do  not  require  to  be  proved  as  laid,  at  least  if  laid 
under  a  videlicet.  But  with  respect  to  title,  it  is,  in  general, 
of  the  substance  of  the  issue ;  and  therefore,  according  to  the 
general  principle  stated  in  the  first  chapter  of  this  work,  (c) 
requires  to  be  maintained  accurately  by  the  proof.  Thus,  in  an 
action  on  the  case,  the  plaintiff  alleged  in  his  declaration  that 
he  demised  a  house  to  the  defendant  for  seven  years,  and  that 
during  the  term  the  defendant  so  negligently  kept  his  fire 
that  the  house  was  burned  down ;  and  the  defendant  having 
pleaded  non  demisit  modo  et  forma,  it  appeared  in  evidence 
that  the  plaintiff  had  demised  to  the  defendant  several  tene- 
ments, of  which  the  house  in  question  was  one ;  but  that,  with 
respect  to  this  house,  it  was,  by  an  exception  in  the  lease,  de- 
mised at  will  only.  The  court  held  that  though  the  plaintiff 
might  have  declared  against  the  defendant  as  tenant  at  will 
only,  and  the  action  would  have  lain,  yet,  having  stated  a 
demise  for  seven  years,  the  proof  of  a  lease  at  will  was  a  vari- 
ance, and  that  in  substance,  not  in  form  only ;  and,  on  the 
ground  of  such  variance,  judgment  was  given  for  the  de- 
fendant, (d) 

§  214.  Title  need  not  be  shown  where  the  opposite  party  is 
estopped  from  denying  it. —  The  rule  which  requires  that  title 
should  be  shown  having  been  now  explained,  it  only  remains 

(a)  Denbam  v.  Stephenaon,  1  Salk.  356. 
(6)  Vide  supra,  p.  397. 

(c)  Supra,  p.  219;  et  vide  supra,  p.  307. 

(d)  Cud  lip  T.  Bundle,  Garth.  20*. 


BULES    TO    PRODUCE    CERTAINTY    IN    ISSUE.  [§  215. 

to  notice  an  exception  to  which  it  is  subject.  This  exception 
is  that  no  title  need  be  shown  where  the  opposite  party  is 
estopped  from  denying  the  title.  Thus,  in  an  action  for  goods 
sold  and  delivered,  it  is  unnecessary,  in  addition  to  the  alle- 
gation that  the  plaintiff  sold  and  delivered  them  to  the  de- 
fendant, to  state  that  they  were  the  goods  of  the  plaintiff;  (e) 
for  a  buyer  who  has  accepted  and  enjoyed  the  goods  cannot 
dispute  the  title  of  the  seller.  So  in  debt  or  covenant  brought 
by  the  lessor  against  the  lessee  on  the  covenants  of  the  lease, 
the  plaintiff  need  allege  no  title  to  the  premises  demised,  be- 
cause a  tenant  is  estopped  from  denying  his  landlord's  title. 
On  the  other  hand,  however,  a  tenant  is  not  bound  to  admit 
title  to  any  extent  greater  than  might  authorize  the  least?, 
and,  therefore,  if  the  action  be  brought  not  by  the  lessor  him- 
self, but  by  his  heir,  executor  or  other  representative  or 
assignee,  the  title  of  the  former  must  be  alleged,  in  order  to 
show  that  the  reversion  is  now  legally  vested  in  the  plaintiff 
in  the  character  in  which  he  sues.  Thus,  if  he  sue  as  heir,  he 
must  allege  that  the  lessor  was  seised  in  fee,  for  the  tenant  is 
not  bound  to  admit  that  he  was  seised  in  fee;  and,  unless  he 
was  so,  the  plaintiff  cannot  claim  as  heir. 

RULE  VL 

§  215.  The  pleadings  must  show  authority.  (/)  — 

In  general,  when  a  party  has  occasion  to  justify  under  a 
writ,  warrant,  precept  or  any  other  authority  whatever,  he 
must  set  it  forth  particularly  in  his  pleading. 

Thus,  in  trespass  for  taking  a  mare,  the  defendant  pleaded 
that  Sir  J.  S.  was  seized  in  fee  of  the  manor  of  B.,  and  that 
he,  and  all  those  whose  estate  he  had  in  the  said  manor,  had 
always  held  a  lawful  court  twice  a  year,  to  which  the  tenants 
of  the  manor  used  to  resort;  that  such  as  had  right  of  com- 
mon were  appointed  by  the  steward  to  be  of  the  jury ;  that 
by-laws  were  accustomed  to  be  made  there,  and  that  such  as 
had  right  of  common  obeyed  those  laws  or  paid  a  forfeiture 
of  a  reasonable  sum  to  be  imposed  on  them ;  that  at  one  of 
these  courts  a  jury  was  sworn  and  a  law  made  that  every 
person  who  had  common  should  pay  forty  shillings  for  depast- 

(e)  B.  N.  R  139. 

(/)  "  Regularly,  whensoever  a  man  doth  anything  by  force  of  a  warrant  or  authority,  ha 
must",  plead  it."  Co.  Litt.  283  a;  Ibid.  303  b;  Com.  Dig.,  Pleader  (E.  17);  1  Saund.  298,  n.  1; 
Lamb  v.  Mills,  4  Mod.  377;  Matthews  v.  Gary,  3  Mod.  137. 


§  216.]  RULES    TO  PRODUCE   CERTAINTY   IN    ISSUE.  405 

uring  his  cattle  on  any  place  where  corn  was  standing;  that 
the  plaintiff  had  right  of  common,  and  permitted  his  sheep  to 
depasture  on  certain  ground  on  which  corn  was  standing; 
that  such  offense  was  presented  at  the  next  court;  and  that 
the  defendant,  being  bailiff  of  the  lord  of  the  said  manor,  did 
take  the  mare  for  the  forfeiture,  etc.  Upon  demurrer  the 
court  held  the  plea  bad;  "for  the  bailiff  cannot  take  a  for- 
feiture ex  officio.  There  must  be  a  precept  directed  to  him 
for  that  purpose,  which  he  must  show  in  the  pleading,"  etc. 
And  judgment  was  given  for  the  plaintiff.  (^)! 

However,  in  replevin,  when  the  defendant  makes  cogni- 
zance, confessing  the  taking  of  the  goods  and  chattels  as  bailiff 
of  another  person  for  rent  in  arrear,  or  as  damage  feasant, 
it  is  sufficient  to  say  generally  that,  "  as  bailiff  of  the  said 
E.  F.,  he  well  acknowledges  the  taking,  etc.,  as  for  and  in  the 
name  of  a  distress,"  etc.,  without  showing  any  warrant  or 
authority  for  that  purpose.  (K) 

The  allegation  of  authority,  like  that  of  title,  must  in  general 
be  strictly  proved  as  laid.1 

The  above-mentioned  particulars  of  place,  time,  quality, 
quantity,  and  value,  names  of  persons,  title,  and  authority, 
though  in  this  work  made  the  subjects  of  distinct  rules,  in 
a  view  to  convenient  classification  and  arrangement,  are  to  be 
considered  but  as  examples  of  that  infinite  variety  of  circum- 
stances which  it  may  become  necessary,  in  different  cases  and 
forms  of  action,  to  particularize  for  the  sake  of  producing  a 
certain  issue ;  for  it  may  be  laid  down  as  a  comprehensive  rule 
that  — 

RULE  VIL 

§216.  In  general,  whatever  is  alleged  in  pleading,  must 
be  alleged  with  certainty.  (*)  * — 

This  rule,  being  very  wide  in  its  terms,  it  will  be  proper  to 
illustrate  it  by  a  variety  of  examples. 

(g)  Lamb  v.  Mills,  4  Mod.  877. 

(A)  Matthews  v.  Gary,  8  Mod.  188. 

(0  Com.  Dig.,  Pleader  (C.  17),  (O.  «J),  (E.  5),  (F.  17). 

1  Von  Kittler  v.  Johnson,  57  III  109;  3The  code  rule  is  the  same.  Speeder 
Tayler  v.  Doremus,  16  N.  J.  L.  478;  Co.  v.  Teeter,  18  Ind.  846.  Eachplead- 
Whitney  v.  Shufelt,  1  Den.  594;  Col-  ing  should  be  sufficiently  certain  to 
lett  v.  Keath,  2  East,  260.  apprise  the  opposite  party  of  what 

2  Ingraham  v.  Edwards,  64  III  526.  ho  is  required  to  meet  on  the  trial, 


406  KULES   TO    PRODUCE   CERTAINTY   IN    ISSUE.  [§  216. 

In  an  action  of  debt  on  a  bond  conditioned  for  performance 
of  covenants,  if  the  defendant  pleads  generally  that  he  per- 
formed the  covenants  according  to  the  condition,  the  plaintiff 
cannot  in  his  replication  tender  issue  with  a  mere  traverse  of 
the  words  of  the  plea,  viz. :  that  the  defendant  did  not  per- 
form any  of  the  covenants,  etc.,  for  this  issue  would  be  too 
wide  and  uncertain;  but  the  replication  in  such  case  must 
assign  a  breach,  showing  specifically  in  what  particular  and  in 
what  manner  the  covenants  have  been  broken.  (&) 

In  debt  on  bond  the  defendant  pleaded  that  the  instru- 
ment was  executed  in  pursuance  of  a  certain  corrupt  contract 
made  at  a  time  and  place  specified  between  the  plaintiff  and 
defendant,  whereupon  there  was  reserved  above  the  rate  of 
£5  for  the  forbearing  of  £100  for  a  year,  contrary  to  the  stat- 
ute in  such  case  made  and  provided.  To  this  plea  there  was  a 
demurrer  assigning  for  cause  that  the  particulars  of  the  con- 
tract were  not  specified,  nor  the  time  of  forbearance,  nor  the 
sum  to  be  forborne,  nor  the  sum  to  be  paid  for  such  forbear- 
ance. And  the  court  held  that  the  plea  was  bad  for  not  set- 
ting forth  particularly  the  corrupt  contract  and  the  usurious 
interest;  and  Bayley,  J.,  observed  that  he  "had  always  un- 
derstood that  the  party  who  pleads  a  contract  must  set  it  out 
if  he  be  a  party  to  the  contract."  (I) 

To  an  action  on  the  case  for  a  libel  imputing  that  the 
plaintiff  was  connected  with  swindlers  and  common  inform- 
ers, and  had  also  been  guilty  of  deceiving  and  defrauding 
divers  persons,  the  defendant  pleaded  that  the  plaintiff  had 
been  illegally,  fraudulently  and  dishonestly  concerned  with, 
and  was  one  of,  a  gang  of  swindlers  and  common  informers, 

(fc)  Flower  v.  BOBS,  5  Taunt  888.  Per  Lord  Mansfield,  Sayre  T.  Binns,  Cowp.  578;  Com. 
Dig.,  Reader  (F.  14). 

(I)  Hill  T.  Montagu,  2  M.  &  S.  377;  Hinton  T.  Roffey,  8  Mod.  85,  S.  P, 

and  to  apprise  the  court  of  the  issue  nite  or  uncertain  that  the  precise 

presented.    If  it  does  this  it  is  suffi-  nature  of  the  charge  or  defense  is 

cient.    O.  &  M.  R.  R.  Co.  v.  People,  not  apparent,  the  court  may  require 

149  III  663.    See  I'Anson  v.  Stuart,  the  pleading  to  be  made  more  defi- 

2  Sm.  L.  C.  987;  Manning  v.  Haas,  nite  and  certain.    People  v.  Ryder, 

5  Colo.  37.    In  New  York  it  is  pro-  15  N.  Y.  43&     See  index,  title  Cer- 

vided  by  the  code  that  when  the  alle-  tainty. 
gations  of  a  pleading  are  so  indefi- 


§  216.]  EULES   TO    PRODUCE    CERTAINTY    IN   ISSUE.  407 

and  had  also  been  guilty  of  deceiving  and  defrauding  divers 
persons  with  whom  he  had  had  dealings  and  transactions.  To 
this  plea  there  was  a  special  demurrer,  assigning  for  cause,  inter 
alia,  that  the  plea  did  not  state  the  particular  instances  of 
fraud;  and  though  the  court  of  common  pleas  gave  judgment 
for  the  defendant,  this  judgment  was  afterwards  reversed 
upon  writ  of  error,  and  the  plea  adjudged  to  be  insufficient 
on  the  ground  above  mentioned,  (m) 

In  an  action  of  trespass  for  false  imprisonment  the  defend- 
ants pleaded  that  before  the  said  time  when,  etc.,  certain  per- 
sons unknown  had  forged  receipts  on  certain  forged  dividend 
warrants,  and  received  the  money  purporting  to  be  due 
thereon  in  Bank  of  England  notes,  among  which  was  a  note 
for  £100,  which  was  afterwards  exchanged  at  the  bank  for 
other  notes,  amongst  which  was  one  for  £10,  the  date  and 
number  of  which  were  afterwards  altered ;  that  afterwards, 
and  a  little  before  the  said  time  when,  etc.,  the  plaintiff  was 
suspiciously  possessed  of  the  altered  note,  and  did  in  a  sus- 
picious manner  dispose  of  the  same  to  one  A.  B.,  and  after- 
wards in  a  suspicious  manner  left  England  and  went  to  Scot- 
land; whereupon  the  defendants  had  reasonable  cause  to 
suspect,  and  did  suspect,  that  the  plaintiff  had  forged  the  said 
receipts;  and  so  proceeded  to  justify  the  taking  and  detain- 
ing his  person,  to  be  dealt  with  according  to  law.  Upon 
general  demurrer  this  plea  was  considered  as  clearly  bad, 
because  it  did  not  show  the  grounds  of  suspicion  with  suffi- 
cient certainty  to  enable  the  court  to  judge  of  their  suffi- 
ciency ;  and  it  was  held  that  the  use  of  the  word  suspiciously 
would  not  compensate  that  omission,  (n) 

In  an  action  of  debt  on  a  bond  conditioned  to  save  the 
plaintiff  harmless  from  such  a  bail  in  such  an  action,  the  de- 
fendant pleaded  quod  libere  et  absolute  exoneravit  the  plaintiff 
of  the  said  bail.  And  upon  demurrer  it  was  adjudged  for  the 
plaintiff ;  "  for  always,  when  one  pleads  a  discharge,  and  that 
he  saved  him  harmless,  he  ought  to  show  how,  that  the  court 
might  adjudge  thereof."  (0) 

In  assumpsit  the  plaintiff  declared  that  whereas  lie  bought 

(m)  TAnson  v.  Stuart,  1  T.  R.  748. 

(n)  Mure  v.  Kaye,  4  Taunt.  34. 

(o)  Cro.  Jac.  363;  et  vide  Ibid.  503;  Cro.  Eliz.  916;  1  Saund.  11T.  n.  1. 


408  BULES   TO   PRODUCE    CERTAINTY   IN    ISSUE.  [§  216. 

of  the  defendant  a  horse  for  22s.,  and  111.  more  to  be  paid  at 
the  death  or  marriage  of  the  plaintiff,  for  which  he  should  be- 
come bound,  with  a  sufficient  surety,  by  their  writing  obliga- 
tory; the  defendant,  in  consideration  thereof,  promised  to 
deliver  the  horse  when  required;  and  that  afterwards  the 
plaintiff  offered  to  "become  "bound  to  the  defendant,  with  a  suf- 
ficient surety,  for  the  payment  of  the  said  11?.  as  aforesaid,  but 
yet  the  defendant  had  not  delivered  the  horse,  though  required 
so  to  do.  The  court  held  that  the  declaration  was  bad  because 
he  did  not  aver  that  he  offered  a  bond  sealed,  etc.,  nor  set  down 
the  sum  in  which  he  was  to  be  bound  to  secure  the  said  11?., 
nor  name  the  surety,  (p) 

In  an  action  of  trover  for  taking  a  ship  the  defendant 
pleaded  that  he  was  captain  of  a  certain  man-of-war,  and  that 
he  seized  the  ship  mentioned  in  the  declaration  as  prize;  that 
he  carried  her  to  a  certain  port  in  the  East  Indies;  and  that 
the  admiralty  court  there  gave  sentence  against  the  said  ship 
as  prize.  Upon  demurrer  it  was  resolved  that  it  was  necessary 
for  the  plea  to  show  some  special  cause  for  which  the  ship  be- 
came a  prize;  and  that  the  defendant  ought  to  show  who  was 
the  judge  that  gave  sentence,  and  to  whom  that  court  of  ad- 
miralty did  belong.  And  for  the  omission  of  these  matters  the 
plea  was  adjudged  insufficient,  (q) 

In  an  action  of  debt  on  bond  conditioned  to  pay  so  much 
money  yearly  while  certain  letters  patent  were  in  force,  the 
defendant  pleaded  that  from  such  a  time  to  such  a  time  he  did 
pay;  and  that  then  the  letters  patent  became  void  and  of  no 
force.  On  demurrer  to  the  replication,  the  court  adjudged 
that  the  plea  was  bad,  because  it  did  not  show  how  the  letters 
patent  became  void.  (/•) 

In  an  action  of  debt  on  a  bond  conditioned  to  pay  the 
plaintiff,  when  he  should  come  to  his  full  age,  all  such  legacies 
as  had  been  given  him  in  a  certain  will,  the  defendant  pleaded 
that  he  did  at  that  time  pay  all  such  legacies,  without  show- 
ing the  day  and  year,  etc.,  when  they  were  paid,  nor  what  the 
legacies  were.  And  it  was  held  clearly  "  that  he  ought  to 
have  shown  this  in  certain  in  his  plea  what  he  had  paid,  and 

(p)  Hob.  69,  77.    This  was  after  verdict;  but  qu.  if  the  faults  would  not  now  be  considered 
as  aided  after  verdict, 
(q)  Garth.  31. 
(r)  Lewis  v.  Preston,  1  Show.  290;  Skin.  303,  S.  C. 


§§  217.  218.]      RULES   TO    PRODUCE    CERTAINTY   IN    ISSUE.  409 

also  the  time  of  payment,  when  this  was,  and  also  the  time 
when  he  came  to  his  full  age."  (s) 

Where  the  defendant  justified  a  taking  on  the  ground  of  a 
contempt  committed  tarn  facf-is  quam  verbis,  the  plea  was 
held  bad  upon  demurrer,  because  it  set  forth  the  contempt  in 
this  general  wa}r  without  showing  its  nature  more  particu- 
larly. (£) 

In  an  action  of  debt  on  bond  conditioned  to  prove  a  debt 
paid,  a  plea  of  performance,  alleging  that  A.  and  B.  proved 
it,  was  held  bad  upon  demurrer,  because  it  did  not  show  how 
the  proof  was  made,  (u) 

§  217.  On  issue  the  allegation  must  be  proved  as  laid*1- 
With  respect  to  all  points  on  which  certainty  of  allegation  is 
required,  it  may  be  remarked  in  general  that  the  allegation, 
when  brought  into  issue,  requires  to  be  proved  in  substance 
as  laid ;  and  that  the  relaxation  from  the  ordinary  rule  on 
this  subject,  which  is  allowed  with  respect  to  place,  time,  quan- 
tity and  value,  does  not,  generally  speaking,  extend  to  other 
particulars. 

Such  are  the  principal  rules  which  tend  to  certainty ;  but  it 
is  to  be  observed  that  these  receive  considerable  limitation 
and  restriction  from  some  other  rules  of  a  subordinate  kind, 
to  the  examination  of  which  it  will  now  be  proper  to  proceed. 

§  218.  1.  It  is  not  necessary  in  pleading  to  state  that 
which  is  merely  matter  of  evidence. (a?)2  — In  other  words, 
it  is  not  necessary,  in  alleging  a  fact,  to  state  such  circum- 
stances as  merely  tend  to  prove  the  truth  of  the  fact.  This 

(s)  1  Bulst.  43. 

(0  Collett  v.  Bailiffs  of  Shrewsbury,  2  Leo.  84 

(M)  Benl.  65. 

(x)  "  Evidence  shall  never  be  pleaded  because  it  tends  to  prove  matter  in  fact;  and  there- 
fore the  matter  in  fact  shall  be  pleaded."  Bowman's  Case,  9  Rep.  9  b;  and  see  9  Ed.  3,  5  b, 
6  a,  there  cited;  Eaton  v.  Southby,  Willes,  131;  Jedmy  v.  Jenny,  Raym.  8. 

1  Rockwell  Co.  v.  Castroni,  6  Colo.  v.  Bell,  87  N.  C.  41;  Green  v.  Palmer, 
54;  G.,  H.  &  S.  A.  Ry.  Co.  v.  Hening  15  CaL  414,  76  Am.  Dec.  492;  Mor- 
(Tex.  Civ.  App.),  36  S.  W.  R  129.  rison  v.  Insurance  Co.,  5  Am.  St.  R. 

2  Church  v.  Gilman,  15  Wend.  656,  63.    Under  this  rule  the   laws  of 
30  Am.  Dec.  82;  Fidler  v.  Delavan,  foreign  states  stand  on  the  same 
20  Wend.  58;  Hyatt  v.  McMahon,  25  footing  as  any  other  fact,  and  are  to 
Barb.  457;  Aultman  &  Co.  v.  Seg-  be  pleaded  only  when  they  are  issu- 
linger,  2  S.  Dak.  442;  Clark  v.  Line-  able.  Thomson-Houston  Electric  Co. 
berger,  44  Ind.  223;  Louisville  Canal  v.  Palmer,  52  Minn.  174 

Co.  v.  Murphy,  9  Bush,  527;  Grant 


410  RULES   TO    PRODUCE    CERTAINTY   IN    ISSUE.  [§  218. 

rule  may  be  illustrated  by  the  following  case:  In  an  action  of 
replevin  for  seventy  cocks  of  wheat,  the  defendant  avowed 
under  a  distress  for  rent  arrear.  The  plaintiff  pleaded  in  bar, 
that  before  the  said  time  when,  etc.,  one  H.  L.  had  recovered 
judgment  against  G.  S.,  and  sued  out  execution;  that  G.  S. 
was  tenant  at  will  to  the  defendant,  and  had  sown  seven  acres 
of  the  premises  with  wheat,  and  died  possessed  thereof  as 
tenant  at  will ;  that  after  his  death  the  sheriff  took  the  said 
wheat  in  execution  and  sold  it  to  the  plaintiff;  that  the  plaint- 
iff suffered  the  wheat  to  grow  on  the  locus  in  quo  till  it  was 
ripe  and  fit  to  cut ;  that  he  afterwards  cut  it  and  made  it  into 
cocks,  whereof  the  said  seventy  cocks  were  parcel ;  that  the 
said  cocks  being  so  cut,  the  plaintiff  suffered  the  same  to  lie 
on  the  said  seven  acres  until  the  same,  in  the  course  of  hus- 
bandry, were  fit  to  be  carried  away ;  and  that  while  they  were 
so  lying,  the  defendant,  of  his  own  wrong,  took  and  distrained 
the  same  under  pretense  of  a  distress,  the  said  wheat  not  then 
being  fit  to  be  carried  away,  according  to  the  course  of  hus- 
bandry, etc.  The  defendant  demurred;  and,  among  other 
objections,  urged  that  it  ought  to  have  been  particularly  , 
shown  how  long  the  wheat  remained  on  the  land  after  the  cut- 
ting, that  the  court  might  judge  whether  it  were  a  reasonable 
time  or  not.  But  the  court  decided  against  the  objection. 
"  For  though  it  is  said,  in  Co.  Litt.  56  b,  that  in  some  cases 
the  court  must  judge  whether  a  thing  be  reasonable  or  not, 
as  in  case  of  a  reasonable  fine,  a  reasonable  notice,  or  the  like, 
it  is  absurd  to  say  that,  in  the  present  case,  the  court  must 
judge  of  the  reasonableness ;  for,  if  so,  It  ought  to  have  been 
set  forth  in  the  plea,  not  only  how  long  the  corn  lay  on  the 
ground,  but  likewise  what  sort  of  weather  there  was  during 
that  time,  and  many  other  incidents,  which  would  be  ridiculous 
to  be  inserted  in  a  plea.  We  are  of  opinion,  therefore,  that 
this  matter  is  sufficiently  averred,  and  that  the  defendant 
might  have  traversed  it  if  he  had  pleased,  and  then  it  would 
have  come  before  a  jury,  who,  upon  hearing  the  evidence, 
would  have  been  the  proper  judges  of  it."  (y) 

The  reason  of  this  rule  is  evident  if  we  revert  to  the  gen- 
eral object  which  all  the  rules  tending  to  certainty  contem- 
plate, viz.,  the  attainment  of  a  certain  issue.  This  implies  (as 

Cv)  Eaton  v.  Southby,  Willes,  181. 


§  219.]  KULES   TO   PRODUCE    CERTAINTY    IN    ISSUE.  411 

has  been  shown)  a  development  of  the  question  in  contro- 
versy in  a  specific  shape ;  and  the  degree  of  specification  with 
which  this  should  be  developed  it  has  been  elsewhere  at- 
tempted, in  a  general  way,  to  define,  (s)  But,  so  that  that 
object  be  attained,  there  is,  in  general,  no  necessity  for  farther 
minuteness  in  the  pleading;  and  therefore,  those  subordinate 
facts  which  go  to  make  up  the  evidence  by  which  the  affirm- 
ative or  negative  of  the  issue  is  to  be  established  do  not  re- 
quire to  be  alleged,  and  may  be  brought  forward  for  the  first 
time  at  the  trial,  when  the  issue  comes  to  be  decided.  Thus, 
in  the  above  example,  if  we  suppose  issue  joined,  whether  the 
wheat  cut  was  afterwards  suffered  to  lie  on  the  ground  a 
reasonable  time  or  not,  there  would  have  been  sufficient  cer- 
tainty, without  showing  on  the  pleadings  any  of  those  cir- 
cumstances (such  as  the  number  of  days,  the  state  of  the 
weather,  etc.)  which  ought  to  enter  into  the  consideration  of 
that  question.  These  circumstances,  being  matter  of  evi- 
dence only,  ought  to  be  proved  before  the  jury,  but  need  not 
appear  on  the  record. 

This  is  a  rule  so  elementary  in  its  kind  and  so  well  observed 
in  practice  as  not  to  have  become  frequently  the  subject  of 
illustration  by  decided  cases ;  and  (for  that  reason,  probably) 
is  little,  if  at  all,  noticed  in  the  digests  and  treatises.  •  It  is, 
however,  a  rule  of  great  importance,  from  the  influence  which 
it  has  on  the  general  character  of  English  pleading;  and  it 
is  this,  perhaps,  more  than  any  other  principle  of  the  science, 
which  tends  to  prevent  that  minuteness  and  prolixity  of  detail 
in  which  the  allegations,  under  other  systems  of  judicature, 
are  involved. 

§  219.  Again:  2.  It  is  not  necessary  to  state  matter  of 
which  the  court  takes  notice  ex  offlcio.  (a) l —  Therefore  it  is 
unnecessary  to  state  matter  of  law;  (J)  for  this  the  judges  are 

(z)  See  supra,  p.  259. 

(«)  Co.  Litt.  303  b;  Com.  Dig.,  Pleader  (C.  78);  Deybel's  Case,  4  Barn.  &  Aid.  248. 

(6)  Doct  PL  102;  Per  Buller,  J.,  The  King  v.  Lyme  Regis,  Doug.  169. 

i  K  a,  M.  &  R  Ry.  v.  Phillips,  98  lock,  15  Tex.  437 ;  Secrist  v.  Petty, 

Ala.    159 ;    McDonald  v    Alabama  109  111.  188.    For  an  exhaustive  and 

Gold  Ins.  Co.,  85  id.  401 ;  Weaver  v.  valuable  statement  of  the  subjects 

Nugent,  72  Tex.  272, 13  Am.  St.  R  792 ;  of  which  the  court  will  take  judicial 

Ferguson  v.  State,  4  G.  Greene,  302,  notice,  see  note  (by  Mr.  Robert  Desty) 

61   Am.  Dec.  120 ;  Castro  v.  Whit-  to  Olive  v.  State,  4  L.  R.  A.  L 


412  EULES   TO   PRODUCE   CERTAINTY    IN   ISSUE.  [§  219. 

bound  to  know,  and  can  apply,  for  themselves,  to  the  facts 
alleged.  Thus,  if  it  be  stated  in  pleading  that  an  officer  of  a 
corporate  body  was  removed  for  misconduct  by  the  corporate 
body  at  large,  it  is  unnecessary  to  aver  that  the  power  of  re- 
moval was  vested  in  such  corporate  body,  because  that  is  a 
power  by  law  incidental  to  them,  unless  given  by  some  charter, 
by-law,  or  other  authority,  to  a  select  part  only,  (c)  ISTor  is  it 
the  principles  of  the  common  law  alone  which  it  is  unneces- 
sary to  state  in  pleading.  The  public  statute  law  falls  within 
the  same  reason  and  the  same  rule;  as  the  judges  are  bound, 
officially,  to  notice  the  tenor  of  every  public  act  of  parlia- 
ment, (d)  It  is  therefore  never  necessary  to  set  forth  a  public 
statute,  (e)  The  case,  however,  of  private  acts  of  parliament 
is  different;  for  these,  the  court  does  not  officially  notice;  (f) 
and  therefore,  where  a  party  has  occasion  to  rely  on  an  act  of 
this  description,  he  must  set  forth  such  parts  of  it  as  are 
material,  (g) 

It  may  be  observed,  however,  that  though  it  is  in  general 
unnecessary  to  allege  matter  of  law.  yet  there  is  sometimes 
occasion  to  make  mention  of  it  for  the  convenience  or  intelli- 
gibility of  the  statement  of  fact.  Thus,  in  an  action  of  as- 
sumpsii  on  a  bill  of  exchange,  the  form  of  the  declaration  is  to 
state  that  the  bill  was  drawn  or  accepted  by  the  defendant, 
etc.  (according  to  the  nature  of  the  case),  and  that  the  defend- 
ant as  drawer  or  acceptor,  etc.,  became  liable  to  pay ;  and  being 
so  liable,  in  consideration  thereof,  promised  to  pay.  So  it  is 
sometimes  necessary  to  refer  to  a  public  statute  in  general 
terms  to  show  that  the  case  is  intended  to  be  brought  within 
the  statute;  as,  for  example,  to  allege  that  the  defendant 
committed  a  certain  act  against  the  form  of  the  statute  in  such 
case  made  and  provided;  but  the  reference  is  made  in  this 
general  way  only,  and  there  is  no  need  to  set  the  statute 
forth. 

This  rule  by  which  matter  of  law  is  omitted  in  the  plead- 
ings by  no  means  prevents  (it  will  be  observed)  the  attainment 
of  the  requisite  certainty  of  issue.  For  even  though  the  dis- 

(c)  The  King  v.  Lyme  Regis,  Doug.  148. 

(d)  1  Bl.  Com.  85. 

(e)  Boyce  v.  Whitaker,  Doug.  97;  Partridge  v.  Strange,  Plow.  81. 
./)  1  Bl.  Com.,  ibid.;  Platt  v.  Hill,  Ld.  Ray.  381. 

(;/)  Boyce  v.  Whitaker,  Doug.  97. 


§  220.]  EULES   TO   PRODUCE    CERTAINTY    IN    ISSUE.  413 

pute  between  the  parties  should  turn  upon  matter  of  law,  yet 
they  may  evidently  obtain  a  sufficiently  specific  issue  of  that 
description  without  any  allegation  of  law,  for  ex  facto  jus 
oritur;  that  is,  every  question  of  law  necessarily  arises  out  of 
some  given  state  of  facts,  and  therefore  nothing  more  is  nec- 
essary than  for  each  party  to  state  alternately,  his  case  in 
point  of  fact;  and  upon  demurrer  to  the  sufficiency  of  some 
one  of  these  pleadings,  the  issue  in  law  must  at  length  (as 
formerly  demonstrated)  arise. 

As  it  is  unnecessary  to  allege  matter  of  law,  so  if  it  be 
alleged  it  is  improper  (as  it  has  been  elsewhere  stated)  to 
make  it  the  subject  of  traverse.  (A) 

Besides  points  of  law,  there  are  many  other  matters  of  a 
public  kind,  of  which  the  court  takes  official  notice,  and  with 
respect  to  which  it  is  for  the  same  reason  unnecessary  to  make 
allegation  in  pleading,  such  as  matters  antecedently  alleged 
in  the  same  record ;  (i)  the  time  of  the  king's  accession,  his 
proclamations,  his  privileges ;  the  time  and  place  of  holding 
parliament,  the  time  of  its  sessions  and  prorogations  and  its 
usual  course  of  proceeding ;  the  ecclesiastical,  civil  and  mari- 
time laws ;  the  customary  course  of  descent  in  gavelkind  and 
borough  English  tenure;  the  course  of  the  almanac;  the  divis- 
ion of  England  into  counties,  provinces  and  dioceses ;  the  mean- 
ing of  English  words  and  terms  of  art  (even  when  only  local 
in  their  use) ;  legal  weights  and  measures  and  the  ordinary 
measurement  of  time ;  the  existence  and  course  of  proceeding 
of  the  superior  courts  at  Westminster  and  the  other  courts 
of  general  jurisdiction,  and  the  privileges  of  the  officers  of  the 
courts  at  Westminster.  (&) 

§  220.  3.  It  is  not  necessary  to  state  matter  which  would 
come  more  properly  from  the  other  side.  (Z)1 —  This,  which 
is  the  ordinary  form  of  the  rule,  does  not  fully  express  its 
meaning.  The  meaning  is  that  it  is  not  necessary  to  antici- 
pate the  answer  of  the  adversary ; s  which,  according  to  Hale, 

(A)  Vide  supra,  p.  308. 

(t)  Co.  Lltt.  303  b. 

(fc)  This  enumeration  is  principally  taken  from  1  Chitty,  216-226,  where  farther  informa- 
tion on  the  subject  will  be  found. 

(0  Com.  Dig.,  Pleader  (C.  81);  Stowell  v.  Lord  Zouch,  Plow.  376;  Walowigham's  Case,  id. 
664;  St.  John  v.  St.  John.  Hob.  78;  Hotham  v.  East  India  Co.,  1  T.  R.  638. 

i  See  Puterbaugh'a  Com.  L.  Prac.  171.    2  Romer  v.  Center,  53  Minn.  171. 
27 


KULES   TO   PRODUCE   CERTAINTY   IN   ISSUE.  [§  220. 

C.  J.,  is  "  like  leaping  before  one  comes  to  the  stile."  (m)  It 
is  sufficient  that  each  pleading  should  in  itself  contain  a  good 
prima  facie  case,  without  refeaence  to  possible  objections  not 
yet  urged.  Thus,  in  pleading  a  devise  of  land  by  force  of  the 
statute  of  wills,  32  Hen.  8.,  ch.  1,  it  is  sufficient  to  allege 
that  such  an  one  was  seised  of  the  land  in  fee,  and  devised  it  by 
his  last  will,  in  writing,  without  alleging  that  such  devisor 
was  of  full  age.  For  though  the  statute  provides  that  wills 
made  by  femes  covert,  or  persons  within  age,  etc.,  shall  not  be 
taken  to  be  effectual,  yet  if  the  devisor  were  within  age,  it  is 
for  the  other  party  to  show  this  in  his  answer,  (n)  and  it  need 
not  be  denied  by  anticipation.  So,  in  a  declaration  of  debt 
upon  a  bond,  it  is  unnecessary  to  allege  that  the  defendant 
was  of  full  age  when  he  executed.  (0)  So,  where  an  action  of 
debt  was  brought  upon  the  statute  21  Hen.  6,  against  the 
bailiff  of  a  town  for  not  returning  the  plaintiff,  a  burgess  of 
that  town,  for  the  last  parliament  (the  words  of  the  statute 
being  that  the  sheriff  shall  send  his  precept  to  the  mayor,  and, 
if  there  be  no  mayor,  then  to  the  bailiff),  the  plaintiff  declared 
that  the  sheriff  had  made  his  precept  unto  the  bailiff,  without 
averring  that  there  was  no  mayor.  And,  after  verdict  for 
the  plaintiff,  this  was  moved  in  arrest  of  judgment.  But  the 
court  was  of  opinion  clearly  that  the  declaration  was  good, 
"  for  we  shall  not  intend  that  there  was  a  mayor  except  it  be 
showed,  and  if  there  were  one,  it  should  come  more  properly 
on  the  other  side."  (p  )  So,  where  there  was  a  covenant  in  a 
charter-party  "  that  no  claim  should  be  admitted  or  allowance 
made  for  short  tonnage,  unless  such  short  tonnage  were  found 
and  made  to  appear  on  the  ship's  arrival,  on  a  survey  to  be 
taken  by  four  shipwrights  to  be  indifferently  chosen  by  both 
parties,"  and  in  an  action  of  covenant  brought  to  recover  for 
short  tonnage  the  plaintiff  had  a  verdict,  the  defendant  moved, 
in  arrest  of  judgment,  that  it  had  not  been  averred  in  the 
declaration  that  a  survey  was  taken  and  short  tonnage  made 
to  appear.  But  the  court  held  that,  if  such  survey  had  not  been 
taken,  this  was  matter  of  defense  which  ought  to  have  been 
shown  by  the  defendants,  and  refused  to  arrest  the  judgment.  (g) 

(m)  Sir  Ralph  Bevy's  Case,  Vent.  217. 

(n)  Stowell  v.  Lord  Zouch,  Plow.  876. 

(o)  Walsingham's  Case,  Plow.  564;  Sir  Ralph  Bovy's  Case,  Vent.  817. 

(p)  St.  John  v.  St.  John,  Hob.  78. 

(4)  Hotham  v.  East  India  Co.,  1  T.  R.  638. 


§  221.]  RULES   TO   PEODUCE    CERTAINTY   IN   ISSUE.  415 

But  where  the  matter  is  such  that  its  affirmation  or  denial 
is  essential  to  the  apparent  or prima  facie  right  of  the  party 
pleading,  there  it  ought  to  be  affirmed  or  denied  by  him,  in 
the  first  instance,  though  it  may  be  such  as  would  otherwise 
property  form  the  subject  of  objection  on  the  other  sides 
Thus,  in  an  action  of  trespass  on  the  case,  brought  by  a  com- 
moner against  a  stranger  for  putting  his  cattle  on  the  com- 
mon, per  quod  communiam  in  tarn  amplo  modohdbere  no  potuit, 
the  defendant  pleaded  a  license  from  the  lord  to  put  his  cattle 
there,  but  did  not  aver  that  there  was  sufficient  common  left 
for  the  commoners.  This  was  held  on  demurrer  to  be  no 
good  plea ;  for  though  it  may  be  objected  that  the  plaintiff 
may  reply  that  there  was  not  enough  common  left,  yet,  as  he 
had  already  alleged  in  his  declaration  that  his  enjoyment  of 
the  common  was  obstructed,  the  contrary  of  this  ought  to 
have  been  shown  by  the  plea.  (r) 

There  is  an  exception  to  the  rule  in  question  in  the  case  of 
certain  pleas  which  are  regarded  unfavorably  by  the  courts  as 
having  the  effect  of  excluding  the  truth.  Such,  as  it  appears, 
are  all  pleas  in  estoppel  (s)  and  the  plea  of  alien  enemy.  It  is 
said  that  these  must  be  certain  m  every  particular,  which 
seems  to  amount  to  this,  that  they  must  meet  and  remove, 
by  anticipation,  every  possible  answer  of  the  adversary.  Thus, 
in  a  plea  of  alien  enemy,  the  defendant  must  state  not  only 
that  the  plaintiff  was  born  in  a  foreign  country,  now  at  enmity 
with  the  king,  but  that  he  came  here  without  letters  of  safe 
conduct  from  the  king;(£)  whereas,  according  to  the  general 
rule  in  question,  such  safe  conduct,  if  granted,  should  be 
averred  by  the  plaintiff  in  reply,  and  need  not,  in  the  first  in- 
stance, be  denied  by  the  defendant. 

§221.  4.  It  is  not  necessary  to  allege  circumstances 
necessarily  implied,  (u) '  —  Thus,  in  an  action  of  debt  on  a 
bond  conditioned  to  stand  to  and  perform  the  award  of  W.R, 

(r)  Smith  v.  Feverell,  2  Mod.  6;  1  Freeman,  190,  S.  C. 

(s)  Co.  Litt.  352  b,  303  a;  Dovaston  v.  Payne,  2  H.  Bl.  530. 

(t)  Casseres  v.  Bell.  8  T.  R.  166. 

(«)  Vynior's  Case,  8  Rep.  81  b;  Bac.  Ab.,  Pleas,  etc.  (1),  7;  Com.  Dig.,  Pleader  (E.  9);  Co. 
Litt.  303  b;  2  Saund.  305  a,  n.  13;  Reg.  Plac.  101;  Sheers  v.  Brooks,  2  H.  BL  120;  Handford 
T.  Palmer,  2  Brod.  &  Bing.  861;  Marsh  v.  Bulteel,  5  Barn.  &  Aid.  507. 

1  Expressio  eorum  quce  tacite  in-  Rep.  205 ;  Bloodgood's  Estate,  26  W. 
fnnt  nihil  operatur.  Re  McHugh's  N.  C.  335 ;  Osborne  v.  Clark,  60  Cal. 
Estate,  29  W.  N.  C.  575, 11  Pa.  Co.  Ct  622 ;  Thorp  v.  Keokuk  Canal  Co.,  48 


416  KTJLES   TO   PRODUCE   CERTAINTY    IN   ISSUE.  [§  222. 

the  defendant  pleaded  that  "W.  R,.  made  no  award.  The 
plaintiff  replied  that,  after  the  making  of  the  bond  and  before 
the  time  for  making  the  award,  the  defendant,  by  his  certain 
•writing,  revoked  the  authority  of  the  said  "W.  R.,  contrary  to 
the  form  and  effect  of  the  said  condition.  Upon  demurrer  it 
was  held  that  this  replication  was  good  without  averring  that 
"W.  R.  had  notice  of  the  revocation,  because  that  was  implied 
in  the  words  " revoked  the  authority"  for  there  could  be  na 
revocation  without  notice  to  the  arbitrator;  so  that  if  W.  R. 
had  no  notice,  it  would  have  been  competent  to  the  defendant 
to  tender  issue  "  that  he  did  not  revoke  in  manner  and  form 
as  alleged."  (x)  So  if  a  feoffment  be  pleaded  it  is  not  neces- 
sary to  allege  livery  of  seisin,  for  it  is  implied  in  the  word 
"  enfeoffed."  (y)1  So  if  a  man  plead  that  he  is  heir  to  A.,  he 
need  not  allege  that  A.  is  dead,  for  it  is  implied,  (z) 

§  222.  5.  It  is  not  necessary  to  allege  what  the  law  will 
presume,  (a)2  —  Thus,  in  debt  on  a  replevin  bond,  the  plaint- 
iffs declared  that,  at  the  city  of  C.,  and  within  the  jurisdiction 
of  the  mayor  of  the  city,  they  distrained  the  goods  of  W.  H. 
for  rent,  and  that  "W.  H.,  at  the  said  city,  made  his  plaint  to 

(x)  Vynior's  Case,  8  Rep.  81  b;  Marsh  v.  Bulteel,  5  Barn.  &  Aid.  507,  S.  P. 

(y)  Co.  Litt.  303  b;  Doct.  PL  48,  49;  2  Saund.  305  a,  n.  13. 

(z)  2  Saund.  305  a,  n.  13;  Com.  Dig.,  Pleader  (E.  9);  Dal.  67. 

(a)  Wilson  v.  Hobday,  4  M.  &  S.  125;  Chapman  v.  Pickersgill,  2  Wils.  147;  1  Chitty,  226. 

N.  Y.  253;  Malcolm  v.   O'Reilly,  89  calculated  to  frighten  an  ordinarily 

id.  126;  Jones  v.  Andrews,  10  Wall,  gentle  horse.    Clinton  v.  Howard,  42 

827.    See  Argumentativeness;  Ambi-  Conn.  294;  Gibbs  v.  Daveis,  168  111. 

guity.  205.    Equity  rule  is  the  same.  Story, 

1  Case  v.  Humphrey,  6  Conn.  180.  Eq.  PI.,  §  452,  n. ;  Jele  v.  Lemberger, 

2  The  rule  as  to  implied  allegations  163  111.   338.    This  rule  refutes  the 
is  the  same  in  code  and  common-law  claim  that  the  common-law  system 
states;  it  is  a  simple  logical  rule  that  was  excessively  strict  and  that  every 
the  allegation  of  a  fact  from  which  omission  was  fatal.    An  omitted  alle- 
the  other  fact  must  follow  is  a  sum-  gation,  though  of  an  essential  fact, 
cient  allegation  of  the  latter  unless  is  not  fatal,  but  may  be  aided  by 
the  matter  is  questioned  by  motion  verdict.      Post,    p.  433;    Henke    v. 
or  special  demurrer;  e.  g.,  the  "exe-  Eureka  Endowment  Ass'n,  100  Cal. 
cution"  of  a  note  implies  delivery.  429;    Campbell    v.    Cross,    39    Ind. 
Smith  v.  White,  103  CaL  372.    That  155;    Bolton  v.   Cleveland,  35  Ohio- 
defendant  placed  object  in  highway,  St.   319;  Fry  v.   Bennett,  28  N.   Y. 
and  plaintiff's  horse,  which  was  gen-  324;   Jaeger  v.  Hartman,  13  Minn, 
tie,  was  frightened  by  it,  is  equiva-  55;  Bennett  v.  Clough,  1  Barn.  &  Aid. 
lent  to  alleging  that  the  object  was  463;  Case  v.  Carroll,  35  N.  Y.  385. 


§  223.]  KULES   TO   PRODUCE    CERTAINTY   IN   ISSUE.  417 

the  mayor,  etc.,  and  prayed-  deliverance,  etc.,  whereupon  the 
mayor  took  from  him  and  the  defendant  the  bond  on  which 
the  action  was  brought,  conditioned  that  W.  H.  should  appear 
before  the  mayor  or  his  deputy  at  the  next  court  of  record  of 
the  city,  and  there  prosecute  his  suit,  etc. ;  and  thereupon  the 
mayor  replevied,  etc.  It  was  held  not  to  be  necessary  to 
allege  in  this  declaration  a  custom  for  the  mayor  to  grant 
replevin  and  take  bond  and  show  that  the  plaint  was  made 
in  court;  because  all  these  circumstances  must  be  presumed 
against  the  defendant,  who  executed  the  bond  and  had  the 
benefit  of  the  replevin.  (5)  So,  in  an  action  for  slander  im- 
puting theft,  the  plaintiff  need  not  aver  that  he  is  not  a  thief, 
because  the  law  presumes  his  innocence  till  the  contrary  be 
shown.  (<?) 

§  223.  6.  A  general  mode  of  pleading  is  allowed  where 
great  prolixity  is  thereby  avoided,  (d} l — It  has  been  objected, 
with  truth,  that  this  rule  is  indefinite  in  its  form,  (e)  Its  ex- 
tent and  application,  however,  may  be  collected  with  some 
degree  of  precision  from  the  examples  by  which  it  is  illus- 
trated in  the  books,  and  by  considering  the  limitations  which 
it  necessarily  receives  from  the  rules  tending  to  certainty,  as 
enumerated  in  a  former  part  of  this  section. 

In  assumpsit  on  a  promise  by  the  defendant  to  pay  for  all 
such  necessaries  as  his  friend  should  be  provided  with  by  the 
plaintiff,  the  plaintiff  alleged  that  he  provided  necessaries 
amounting  to  such  a  sum.  It  was  moved  in  arrest  of  judg- 
ment that  the  declaration  was  not  good,  because  he  had  not 
shown  what  necessaries  in  particular  he  had  provided.  But 
Coke,  0.  J.,  said,  "  this  is  good,  as  is  here  pleaded  for  avoiding 
such  multiplicities  of  reckonings;"  and  Doddridge,  J.,  "this 
general  allegation,  that  he  had  provided  him  with  all  necessa- 
ries, is  good  without  showing  in  particular  what  they  were." 

(6)  Wilson  v.  Hobday,  4  M.  &  S.  125. 

(c)  Chapman  v.  Pickersgill,  2  Wils.  147;  1  Chitty,  226. 

(d)  Co.  Litt.  303  b;  2  Saund.  116  b,  411,  n.  4;  Bac.  Ab.,  Pleas,  etc.  (I.),  3;  Jenny  v.  Jenny, 
Raym.  8;  Aglionby  v-  Towerson,  id.  400;  Parkes  v.  Middleton,  Lutw.  421;  Cornwallis  v.  Sav- 
ery,  2  Burr.  772;  Mints  v.  Bethil,  Cro.  Eliz.  749;  Braban  v.  Bacon,  id.  916;  Church  v.  Brown- 
wick,  1  Sid.  334;  Cryps  v.  Baynton,  3  Bulst.  31;  Banks  v.  Pratt,  Sty.  428;  Garth.  110;  TAnson 
v.  Stuart,  1  T.  R.  753;  Hill  v.  Montagu,  2  M.  &  S.  378. 

(e)  Huggins  v.  Wiseman,  1  Arch.  211. 

1  Chicago,  etc.  Ry.  v.  Wolcott,  141  Ind.  267,  50  Am.  St.  R  320. 


418  ETJLES   TO    PKODUCE    CERTAINTY    IN   ISSUE.  [§  223. 

And  the  court  gave  judgment  unanimously  for  the  plaintiff,  (f ) 
So  in  assumpsit  for  labor  and  medicines  for  curing  the  defend- 
ant of  a  distemper,  the  defendant  pleaded  infancy.  The 
plaintiff  replied  that  the  action  was  brought  for  necessaries 
generally.  On  demurrer  to  the  replication  it  was  objected 
that  the  plaintiff  had  not  assigned  in  certain  how  or  in  what 
manner  the  medicines  were  necessary;  but  it  was  adjudged 
that  the  replication  in  this  general  form  was  good ;  and  the 
plaintiff  had  judgment,  (g)  So  in  debt  on  a  bond  conditioned 
that  the  defendant  shall  pay  from  time  to  time  the  moiety  of 
all  such  money  as  he  shall  receive  and  give  account  of  it,  he 
pleaded  generally  that  he  had  paid  the  moiety  of  all  such 
money,  etc.  Et  per  curiam:  "  This  plea  of  payment  is  good 
without  showing  the  particular  sums;  and  that  in  order  to- 
avoid  stuffing  the  rolls  with  multiplicity  of  matter."  Also  they 
agreed  that,  if  the  condition  had  been  to  pay  the  moiety  of  such 
money  as  he  should  receive,  without  saying  from  time  to  time, 
the  payment  should  have  been  pleaded  specially,  (A) 

In  an  action  on  a  bond  conditioned  that  W.  W.,  who  was- 
appointed  agent  of  a  regiment,  should  pay  all  such  sum  and 
sums  of  money  as  he  should  receive  from  the  paymaster-general, 
for  the  use  of  the  regiment,  and  faithfully  account  to  and  in- 
demnify the  plaintiff,  the  defendant  pleaded  a  general  perform- 
ance and  that  the  plaintiff  was  not  damnified.  The  plaintiff 
replied  that  W.  "W.  received  from  the  paymaster-general,  for 
the  use  of  the  said  regiment,  several  sums  of  money,  amounting 
in  the  whole  to  £1,400,  for  and  on  account  of  the  said  regiment, 
and  of  the  commissioned  and  non-commissioned  officers  and 
soldiers  of  the  same,  according  to  their  respective  proportions, 
and  that  he  had  not  paid  a  great  part  thereof  among  the  colonel, 
officers  and  soldiers,  etc.,  according  to  the  several  proportions 
of  their  pay.  Upon  demurrer,  the  court  said  that  "  there  was 
no  need  to  spin  out  the  proceedings  to  a  great  prolixity  by 
entering  into  the  detail,  and  stating  the  various  deductions  out 
of  the  whole  pay,  upon  various  accounts,  and  in  different  pro- 
portions." (i)  So  in  debt  on  bond  conditioned  that  R.  S.  should 

(/)  Cryps  v.  Baynton,  3  Bulst.  81. 

(g)  Huggins  v.  Wiseman,  Garth.  110. 

(h)  Church  v.  Brownwick,  1  Sid.  334;  and  see  Mints  v.  Bethil,  Cro.  Eliz.  749. 

(f)  Cornwallis  v.  Savery,  2  Burr.  772. 


§  224.]  RULES   TO   PBODUCE    CERTAINTY   IN   ISSUE.  419 

render  to  the  plaintiff  a  just  account,  and  make  payment  and 
delivery  of  all  monies,  bills,  etc.,  which  he  should  receive  as 
his  agent,  the  defendant  pleaded  performance..  The,  plaintiff 
replied  that  R.  S.  received  as  such  agent  divers  sums  of  money, 
amounting  to  £2,000,  belonging  to  the  plaintiff's  business,  and 
had  not  rendered  a  just  account,  nor  made  payment  and  de- 
livery of  the  said  sum,  or  any  part  thereof.  The  defendant 
demurred  specially,  assigning  for  cause  that  it  did  not  appear 
by  the  replication  from  whom,  or  in  what  manner,  or  in  what 
proportions,  the  said  sums  of  money,  amounting  to  £2,000,  had 
been  received.  But  the  court  held  the  replication  "  agreeable 
to  the  rules  of  law  and  precedents."  (&) 

§  224.  7.  A  general  mode  of  pleading  is  often  sufficient 
where  the  allegation  on  the  other  side  must  reduce  the 
matter  to  certainty.  (1)  —  The  rule  comes  into  most  frequent 
illustration  in  pleading  performance  in  actions  of  debt  on  bond. 
Bonds  may  be  conditioned  either  for  the  performance  of  certain 
matters  set  forth  in  the  condition,  or  of  the  covenants  or  other 
matters  contained  in  an  indenture  or  other  instrument  collateral 
to  the  bond,  and  not  set  forth  in  the  condition.  In  either  case, 
if  the  defendant  has  to  plead  performance  of  such  matters,  the 
law  often  allows  him  to  do  so,  in  general  terms,  without  setting 
forth  the  manner  of  performance.  For,  by  the  usual  course  of 
pleading,  the  plaintiff  declares  upon  the  bond  as  single,  with- 
out noticing  the  condition,  and  therefore  without  alleging  any 
breach  of  the  condition,  (m)  It  follows,  therefore,  of  course, 
that  if  the  defendant  pleads  performance,  the  plaintiff  will 
have  to  show  a  breach  in  his  replication;  (n)  and  as  this  will  in 
all  events  lead  to  a  sufficient  certainty  of  issue,  it  becomes  un- 
necessary for  the  defendant  to  be  specific  on  his  part  in  his 
plea,  or  to  do  more  than  allege  performance  in  general  terms, 
according  to  the  words  of  the  condition,  leaving  the  plaintiff 
in  his  replication  to  specify  the  breach  that  is  supposed  to  have 
been  committed.1 

(fc)  Shum  v.  Farrington,  1  Bos.  &  Pul.  640;  and  see  a  similar  decision,  Burton  v.  Webb,  8 
T.  R.  459. 

(I)  Co.  Lit.  303  b;  Mints  v.  Bethil,  Cro.  Eliz.  749;  1  Saund.  117,  n.  1;  2  Saund.  410,  n.  3; 
Church  v.  Brownwick,  1  Sid.  334. 

(m)  See  the  form,  supra,  p.  157. 

(n)  Vide  supra,  p.  406. 

1  This  must  be  understood  to  apply  a  bond.  The  reason  is  that  by  a  bond 
only  to  a  breach  of  the  condition  of  the  obligors  agree  to  pay  a  sum  cer- 


420 


RULES  TO   PBODUCE   CERTAINTY   IN  ISSUE. 


[§  224. 


Of  the  first  case,  viz.,  that  where  the  condition  itself  sets  forth 
the  matters  to  le  performed,  the  following  is  an  example.  In 
debt  on  bond  conditioned  that  the  defendant  should  at  all 
times,  upon  request,  deliver  to  the  plaintiff  all  the  fat  and  tal- 
low of  all  beasts  which  he,  his  servants  or  assigns,  should  kill 
or  dress  before  such  a  day,  the  defendant  pleaded  that  upon 
every  request  made  unto  him  he  delivered  unto  the  plaintiff  all 
the  fat  and  tallow  of  all.  beasts  which  were  killed  by  him  or 
any  of  his  servants  or  assigns  before  the  said  day.  On  de- 
murrer it  was  objected  "  that  the  plea  was  not  good  in  such 
generality;  but  he  ought  to  have  said  that  he  had  delivered  so 
much  fat  or  tallow,  which  was  all,  etc.,  or  that  he  had  killed 
so  many  beasts,  whereof  he  had  delivered  all  the  fat."  But 
the  court  adjudged  for  the  defendant,  (o) 

(o)  Mints  v.  Bethil,  Cro.  Eliz.  749;  and  see  Church  y.  Brownwlck,  1  Sid.  834. 

suspensive  conditions,  and  the  ex- 
pression suggests  the  effect  of  their 
happening,  which  is  to  dispense  with 
further  performanca  New  Orleans 
v.  Texas  Pacific  Ry.  Co.,  171  U.  S. 
333. 

Conditions  are  to  be  distinguished 
from  covenants  and  ordinary  stipu- 
lations to  do  or  refrain  from  doing, 
in  this:  that  conditions  will  not  sup- 
port an  action;  they  may  and  will 
prevent  a  recovery,  or  be  the  ground 
of  a  forfeiture  of  right  or  property, 
but  no  action  will  lie  for  damages 
arising  by  reason  of  the  happening  of 
an  event  which  is  treated  as  a  condi- 
tion in  a  contract.  Hale  v.  Pinch, 
104  U.  S.  266. 

"  It  by  no  means  follows,  because  a 
grantee  consents  to  take  an  estate 
subject  to  a  condition,  that  he  also 
consents  to  obligate  himself  person- 
ally for  the  performance  of  the  con- 
dition. Many  cases  might  be  imag- 
ined in  which  one  would  be  willing 
to  risk  the  forfeiture  of  the  estate, 
while  he  would  be  altogether  unwill- 
ing to  incur  the  hazard  of  a  personal 
responsibility  in  addition."  Palmer 
v.  Plank-road  Co.,  11  N.  Y.  389. 


tain  at  a  time  fixed,  and  collateral 
to  this  promise  absolute  in  form  is 
the  condition,  so  the  plaintiff  sets 
out  the  promise  and  alleges  non-per- 
formance. In  an  action  on  a  cove- 
nant in  a  deed  or  agreement,  the 
same  reason  will  not  apply,  and  such 
a  general  allegation  of  non-perform- 
ance is  not  sufficient;  e.  g.,  in  an 
action  on  a  covenant  on  a  lease,  with 
a  covenant  of  title  and  for  quiet  en- 
joyment, after  setting  out  the  lease 
the  plaintiff  alleged  "  that,  although 
he  has  complied  with  all  the  provis- 
ions of  said  contract  on  his  part,  the 
defendant  has  failed  to  comply  with 
the  following  provisions,"  etc.  It 
was  held  that  this  would  not  do,  but 
that  the  facts  relied  upon  as  a  breach 
must  be  alleged.  Chestnut  v.  Tyson, 
105  Ala.  149. 

As  to  conditions,  see  Andrews' 
Am.  Law,  p.  749  et  seq.  It  is  neces- 
sary to  allege  and  prove  performance 
of  conditions  precedent,  and  it  is  not 
proper  to  prove  a  waiver  under  an 
allegation  of  performance.  Long 
Creek  Ass'n  v.  State  Ins.  Co.,  29 
Oreg.  569.  Cf.  McCullough  v.  Insur- 
ance Co.,  113  Mo.  606. 

Conditions  are,  in  Louisiana,  called 


§  224.]  RULES   TO   PRODUCE    CERTAINTY   IN   ISSUE.  421 

Another  illustration  is  afforded  by  the  plea  of  non  damnifi- 
catus  in  an  action  of  debt  on  an  indemnity  bond,  or  bond  con- 
ditioned "to  keep  the  plaintiff  harmless  and  indemnified,"  etc. 
This  is  in  the  nature  of  a  plea  of  performance,  being  used 
where  the  defendant  means  to  allege  that  the  plaintiff  has 
been  kept  harmless  and  indemnified,  according  to  the  tenor  of 
the  condition;  and  it  is  pleaded  in  general  terms  without 
showing  the  particular  manner  of  the  indemnification.  Thus, 
if  an  action  of  debt  be  brought  on  a  bond  conditioned  that 
the  defendant  "  do  from  time  to  time  acquit,  discharge  and 
save  harmless  the  churchwardens  of  the  parish  of  P.,  and  their 
successors,  etc.,  from  all  manner  of  costs  and  charges  by  reason 
of  the  birth  and  maintenance  of  a  certain  child,"  if  the  de- 
fendant means  to  rely  on  the  performance  of  the  condition  he 
may  plead  in  this  general  form,  "  that  the  churchwardens  of 
the  said  parish  or  their  successors,  etc.,  from  the  time  of  mak- 
ing the  said  writing  obligatory,  were  not  in  any  manner  dam- 
nified by  reason  of  the  birth  and  maintenance  of  the  said 
child ; "  (p)  and  it  will  then  be  for  the  plaintiff  to  show  in  the 
replication  how  the  churchwardens  were  damnified. 

While  thus  it  is  often  sufficient  to  plead  performance  in 
general  terms,  it  is  said,  on  the  other  had,  that  this  generality 
is  only  allowed  "  where  the  subject  comprehends  multiplicity 
of  matters ; "  and  that,  if  there  be  anything  specific  in  the  sub- 
ject, though  consisting  of  a  number  of  acts,  they  must  all  be 
enumerated ;  for  example,  that,  if  the  defendant  be  bound  to 
"  pay  all  the  legacies  in  a  will,"  he  must  specify  them  all  and 
aver  payment  of  each,  (q)  And  with  respect  to  the  plea  of 
non  damnificatus  in  particular,  the  following  distinctions  have 
been  taken:  First,  if,  instead  of  pleading  in  that  form,  the 
defendant  alleges  affirmatively  that  he  "  has  saved  harmless," 
etc.,  the  plea  will  in  this  case  be  bad,  unless  he  proceeds  to 
show  specificalty  how  he  saved  harmless,  (r)  Again,  it  is  held 
that  if  the  condition  does  not  use  the  words  "  indemnify,"  or 
"save  harmless,"  or  some  equivalent  term,  but  stipulates  for 
the  performance  of  some  specific  act,  intended  to  be  by  way 
of  indemnity,  such  as  the  payment  of  a  sum  of  money  by  the 

(p)  Richard  Y.  Hodges,  2  Saund.  84;  Hays  v.  Bryant,  1  H.  Bl.  253;  Com.  Dig.,  Ploader 
(E.  25),  (2  W.  33) ;  Manser's  Case,  2  Rep.  4  a;  7  Went.  Index,  615;  5  Went.  531. 
(?)  1  Saund.  117,  n.  1;  1  Bulst  43;  1  Lutw.  419. 
<r)  1  Saund.  117,  n.  1. 


RULES   TO   PRODUCE   CERTAINTY    IN    ISSUE.  [\ 

defendant  to  a  third  person,  in  exoneration  of  the  plaintiff's 
liability  to  pay  the  same  sum,  the  plea  of  non  damnificatus 
will  be  improper;  and  the  defendant  should  plead  perform- 
ance specifically,  as  "that  he  paid  the  said  sum,"  etc.  (s)  It  is 
also  laid  down  that,  if  the  conditions  of  the  bond  be  to  "  dis- 
charge" or  "acquit"  the  plaintiff  from  a  particular  thing,  the 
plea  of  non  damnificatus  will  not  apply,  but  the  defendant 
must  plead  performance  specially,  "that  he  discharged  and 
acquitted,"  etc.,  and  must  also  show  the  manner  of  such  ac- 
quittal and  discharge,  (t)  But,  on  the  other  hand,  if  a  bond 
be  conditioned  to  "discharge  and  acquit  the  plaintiff  from, 
any  damage"  by  reason  of  a  certain  thing,  non  damnificatus 
may  then  be  pleaded,  because  that  is  in  truth  the  same  thing 
with  a  condition  to  "indemnify  and  save  harmless,"  etc.  (u) 

Next  is  to  be  considered  the  case  where  the  condition  is  for 
performance  of  covenants  or  other  matters  contained  in  an 
indenture  or  other  instrument  collateral  to  the  bond  and  not  set 
forth  in  the  condition.  In  this  case  also,  the  law  often  allows 
(upon  the  same  principle  as  in  the  last)  a  general  plea  of  per- 
formance without  setting  forth  the  manner,  (x)  Thus,  in  an 
action  of  debt  on  bond  where  the  condition  is  that  T.  J., 
deputy  postmaster  of  a  certain  stage,  "shall  and  will  truly, 
faithfully  and  diligently  do,  execute  and  perform  all  and  every 
the  duties  belonging  to  the  said  office  of  deputy  postmaster 
of  the  said  stage,  and  shall  faithfully,  justly  and  exactly  ob- 
serve, perform,  fulfill  and  keep  all  and  every  the  instructions, 
etc.,  from  his  majesty's  postmaster-general,"  and  such  instruc- 
tions are  in  an  affirmative  and  absolute  form,  as  follows: 
"  You  shall  cause  all  leters  and  packets  to  be  speedily  and 
without  delay,  carefully  and  faithfully  delivered,  that  shall 
from  time  to  time  be  sent  unto  your  said  stage  to  b:*  dispersed 
there  or  in  the  towns  and  parts  adjacent,  that  all  persons  re- 
ceiving such  letters  may  have  time  to  send  their  respective 
answers,"  etc.,  it  is  sufficient  for  the  defendant  to  plead,  after 
setting  forth  the  instructions,  "  that  the  said  T.  J.,  from  the 

(«)  1  Bos.  &  Pul.  63». 

(t)  1  Saund.  117,  n.  1;  Bret  v.  Andar,  1  Leon.  71;  Strange,  422;  White  v.  Cleaver,  id. 
681;  Leneret  v.  Rivet,  Cro.  Jac.  503;  Harris  v.  Prett,  5  Mod.  243. 

(M)  1  Saund.  117,  n.  1;  Carth.  375. 

(x)  Cro.  Eliz.  749;  Bac.  Ab.,  Pleas,  etc.  (I.)  3;  2  Saund.  410,  n.  3;  1  Saund.  117,  n,  1;  Com. 
Dig ,  Pleader  (2  V.  13);  Earl  of  Kerry  v.  Baxter,  4  East,  340. 


§  224.]  KTJLES   TO   PBODUCE   CERTAINTY   IN    ISSUE.  423 

time  of  the  making  the  said  writing  obligatory,  hitherto,  hath 
well,  truly,  faithfully  and  diligently  done,  executed  and  per- 
formed all  and  every  the  duties  belonging  to  the  said  office 
of  deputy  postmaster  of  the  said  stage,  and  faithfully,  justly 
and  exactly  observed,  performed,  fulfilled  and  kept  all  and 
every  the  instructions,  etc.,  according  to  the  true  intent  and 
meaning  of  the  said  instructions,"  without  showing  the  man- 
ner of  performance,  as  that  he  did  cause  certain  letters  of 
packets  to  be  delivered,  etc.,  being  all  that  were  sent,  (y) 
So.  if  a  bond  be  conditioned  for  fulfilling  all  and  singular  the 
covenants,  articles,  clauses,  provisos,  conditions  and  agree- 
ments comprised  in  a  certain  indenture  on  the  part  and  behalf 
of  the  defendant,  which  indenture  contains  covenants  of  an 
affirmative  and  absolute  kind  only,  it  is  sufficient  to  plead, 
after  setting  forth  the  indenture,  that  the  defendant  always 
hitherto  hath  well  and  truly  fulfilled  all  and  singular  the 
covenants,  articles,  clauses,  provisos,  conditions  and  agree- 
ments comprised  in  the  said  indenture  on  the  part  and  behalf 
of  the  said  defendant,  (s). 

But  the  adoption  of  a  mode  of  pleading  so  general  as  in 
these  examples  will  be  improper  where  the  covenants  or 
other  matters  mentioned  in  the  collateral  instrument  are 
either  in  the  negative  or  the  disjunctive  form; (a)  and  with 
respect  to  such  matters  the  allegation  of  performance  should 
be  more  specially  made,  so  as  to  apply  exactly  to  the  tenor  of 
the  collateral  instrument.  Thus,  in  the  example  above  given, 
of  a  bond  conditioned  for  the  performance  of  the  duties  of  a 
deputy  postmaster  and  for  observing  the  instructions  of  the 
postmaster-general,  if,  besides  those  in  the  positive  form,  some 
of  these  instructions  were  in  the  negative,  as,  for  example, 
"  you  shall  not  receive  any  letters  or  packets  directed  to  any 
seaman,  or  to  any  private  soldier,  etc.,  unless  you  be  first  paid 
for  the  same,  and  do  charge  the  same  to  your  account  as 
paid,"  it  would  be  improper  to  plead  merely  that  T.  J.  faith- 
fully performed  the  duties  belonging  to  the  office,  etc.,  and 
all  and  every  the  instructions,  etc.  Such  plea  will  apply  suffi- 

(jj)  2  Saund.  403  b,  410,  n.  8. 

(z)  Gainsford  v.  Griffith,  1  Saund.  117,  n.  1;  Earl  of  Kerry  v.  Baxter,  4  East,  840.  See  the 
form,  2  Chitty,  488. 

(a)  Earl  of  Kerry  v.  Baxter,  4  East,  340;  Oglethorpe  v.  Hyde,  Cro.  Eliz.  233;  Lord  Arling- 
ton v.  Merricke,  2  Saund.  410,  and  note  3,  ibid. 


ETJLES   TO   PEODUOE    CERTAINTY   IN    ISSUE. 


[§  224. 


ciently  to  the  positive  but  not  to  the  negative  part  of  the  in- 
structions. (5)  The  form,  therefore,  should  be  as  follows: 
"  That  the  said  T.  J.,  from  the  time  of  making  the  said  writ- 
ing obligatory,  hitherto,  hath  well,  truly,  faithfully  and  dili- 
gently executed  and  performed  all  and  every  the  duties  belong- 
ing to  the  said  office  of  deputy  postmaster  of  the  said  stage, 
and  faithfully,  justly  and  exactly  observed,  performed,  ful- 
filled and  kept  all  and  every  the  instructions,  etc.,  according 
to  the  true  intent  and  meaning  of  the  said  instructions.  And 
the  said  defendant  farther  says  that  the  said  T.  J.,  from  the 
time  aforesaid,  did  not  receive  any  letters  or  packets  directed 
to  any  seaman  or  private  soldier,  etc.,  unless  he,  the  said  T.  J., 
was  first  paid  for  the  same,  and  did  so  charge  himself  in  his 
account  with  the  same  as  paid,  etc.  (c)  And  the  case  is  the 
same  where  the  matters  mentioned  in  the  collateral  instru- 
ment are  in  the  disjunctive  or  alternative  form,  as  where  the 
defendant  engages  to  do  either  one  thing  or  another.  Here, 
also,  a  general  allegation  of  performance  is  insufficient,  and  he 
should  show  which  of  the  alternative  acts  was  performed,  (d) 

The  reasons  why  the  general  allegation  of  performance  does 
not  properly  apply  to  negative  or  disjunctive  matters  are,  that 
in  the  first  case  the  plea  would  be  indirect  or  argumentative 
in  its  form;  in  the  second,  equivocal;  and  would  in  either 
case,  therefore,  be  objectionable  in  reference  to  certain  rules 
of  pleading,  which  we  shall  have  occasion  to  consider  in  the 
next  section. 

It  has  been  stated  in  a  former  part  of  this  work  (e)  that 
where  a  party  founds  his  answer  upon  any  matter  set  forth 
by  his  adversary,  but  contained  in  a  deed,  of  which  the  latter 
makes  profert,  he  must  demand  oyer  of  such  deed  and  set  it 
forth.  In  pleading  performance,  therefore,  of  the  condition 
of  a  bond,  where,  as  is  generally  the  case,  the  plaintiff  has 
stated 'in  his  declaration  nothing  but  the  bond  itself,  without 
the  condition,  it  is  necessary  for  the  defendant  to  demand  oyer 
of  the  condition  and  set  it  forth.  (/}  And  in  pleading  per- 
formance of  matters  contained  in  a  collateral  instrument  it  is 

(6)  Lord  Arlington  v.  Merricke,  2  Saund.  410,  and  note  3,  ibid. 

(c)  2  Saund.,  ibid. 

(d)  Oglethorpe  v.  Hyde,  Cro.  Eliz.  833. 

(e)  Supra,  p.  203. 
(/)  2  Saund.  410,  n.  2. 


§  225.]  EULES   TO   PKODTJCE   CERTAINTY    IN   ISSUE.  425 

necessary  not  only  to  do  this  but  also  to  set  forth  and  make 
profert  of  the  whole  substance  of  the  collateral  instrument;  (cj) 
for  otherwise  it  will  not  appear  that  the  instrument  did  not 
stipulate  for  the  performance  of  negative  or  disjunctive  mat- 
ters ;  (A)  and,  in  that  case,  the  general  plea  of  performance  of 
the  matters  therein  contained  would,  as  above  shown,  be  im- 
proper. 

§  225.  8.  No  greater  particularity  is  required  than  the 
nature  of  the  thing  pleaded  will  conveniently  admit,  (t)1 — 
Thus,  though  generally,  in  an  action  for  injury  to  goods,  the 
quantity  of  the  goods  must  be  stated,  (&)  yet,  if  they  cannot, 
under  the  circumstances  of  the  case,  be  conveniently  ascer- 
tained by  number,  weight  or  measure,  such  certainty  will  not 
be  required.  Accordingly,  in  trespass  for  breaking  the  plaint- 
iff's close  with  beasts  and  eating  his  peas,  a  declaration  not 
showing  the  quantity  of  peas  has  been  held  sufficient,  "  be- 
cause nobody  can  measure  the  peas  that  beasts  can  eat."  (Z) 
So,  in  an  action  on  the  case  for  setting  a  house  on  fire,  per 
quod,  the  plaintiff,  amongst  other  divers  goods,  ornatus  pro 
equis  amisit,  after  verdict  for  the  plaintiff  it  was  objected 
that  this  was  uncertain;  but  the  objection  was  disallowed 
by  the  court.  And  in  this  case  "Windham,  J.,  said  that,  if 
he  had  mentioned  only  diversa  fiona,  yet  it  had  been  well 
enough,  as  a  man  cannot  be  supposed  to  know  the  certainty 
of  his  goods  when  his  house  is  burnt,  and  added  that  to  avoid 
prolixity  the  law  will  sometimes  allow  such  a  declaration,  (m) 
So,  in  an  action  of  debt  brought  on  the  statute  23  Hen.  6, 
ch.  15,  against  the  sheriff  of  Anglesea  for  not  returning  the 
plaintiff  to  be  a  knight  of  the  shire  in  parliament,  the  declara- 
tion alleged  that  the  plaintiff  "  was  chosen  and  nominated  a 
knight  of  the  same  county,  etc.,  by  the  greater  number  of  men 
resident  within  the  said  county  of  Anglesea,  present,  etc.,  each 

(0)  Ibid. 

<fc)  See  Earl  of  Kerry  v.  Baxter,  4  East,  840. 

(1)  Bac.  Ab.,  Pleas,  etc.  (B.)  5,  5;  and  p.  409, 5th  ed. ;  Buckley  v.  Bice  Thomas,  Plow.  118; 
Wimbish  v.  Tailbois,  id.  64;  Partridge  v.  Strange,  id.  85. 

(fc)  Vide  supra,  p.  386. 

(Z)  Bac.  Ab.,  ubi  supra. 

(m)  Bac.  Ab.,  Pleas,  etc.,  p.  409,  5th  ed, 

1  See  Pike  v.  Colvin,  67  111.  228 ;  be  made  so  by  a  mere  reference  to 
Pearce  v.  Hall,  12  Bush  (Ky),  209.  the  preceding  pleading.  Sutherland 
That  is  sufficiently  certain  which  can  v.  Phelps,  22 11L  91. 


426  RULES   TO   PRODUCE    CERTAINTY   IN   ISSUE.  [§  22C. 

of  whom  could  dispend  40s.  of  freehold  by  the  year,"  etc.  On 
demurrer  it  was  objected  that  the  plaintiff  "  does  not  sho\v 
the  certainty  of  the  number,  as  to  say  that  he  was  chosen  by 
two  hundred,  which  was  the  greater  number,  and  thereupon 
a  certain  issue  might  arise  whether  he  was  elected  by  so  many 
or  not."  But  it  was  held  that  the  declaration  was  "good 
enough  without  showing  the  number  of  electors;  for  the  elec- 
tion might  be  made  by  voices,  or  by  hands,  or  such  other  way, 
wherein  it  is  easy  to  tell  who  has  the  majority,  and  yet  very 
difficult  to  know  the  certain  number  of  them."  And  it  was 
laid  down  that,  to  put  the  plaintiff  "  to  declare  a  certainty 
where  he  cannot  by  any  possibility  be  presumed  to  know  o" 
remember  the  certainty,  is  not  reasonable  nor  requisite  in 
our  law."  (ft)  So,  in  an  action  for  false  imprisonment,  where 
the  plaintiff  declared  that  the  defendant  imprisoned  him  until 
he  made  a  certain  bond,  by  duress,  to  the  defendant,  "and 
others  unknown,"  the  declaration  was  adjudged  to  be  good, 
without  showing  the  names  of  the  others;  "because  it  might 
be  that  he  could  not  know  their  names;  in  which  case  the  law 
will  not  force  him  to  show  that  which  he  cannot."  (o) 

§  226.  9.  Less  particularity  is  required  when  the  facts 
lie  more  in  the  knowledge  of  the  opposite  party  than  of  the 
party  pleading,  (j?)1 — This  rule  is  exemplified  in  the  case  of 
alleging  title  in  an  adversary,  where  (as  formerly  explained) 

(n)  Buckley  v.  Rice  Thomas,  Plow.  118. 

(o)  Cited  Plow.  128.  See,  also,  Wimbish  v.  Tailbois,  Plow.  54,  65;  Partridge  v.  Strange, 
id.  85. 

(p)  Rider  v.  Smith,  8  T.  R.  766;  Derisley  v.  distance,  4  T.  R.  77;  Attorney-General  v. 
Meller,  Hard.  459;  Denham  v.  Stephenson,  1  Salk.  355;  Com.  Dig.,  Pleader  (C.  26);  Robert 
Bradshaw's  Case,  9  Rep.  60  b;  Gale  v.  Read,  8  East,  80. 

1  Maxwell,  Code  PI.   14;  Owens  v.  is  under  the  defendant's  control.  "In 

Geiger,  2  Mo.   39,  22  Am.  Dec.  435.  such    cases,"    said    Channel,   B.,  in 

"  The  rule  of  certainty  in  pleading  is  Bridges  v.  North  London  R  Co.,  L. 

not  too  rigid  to  be  reasonable.     It  R  6  Q.  B.  377,  "the  plaintiff  may 

was  designed  to  further,  not,  defeat  give  the  required  evidence  of  negli- 

the  ends  of  justice."    Durfee,  C.  J.,  gence  without    himself   explaining 

in  Cox  v.  Providence  Gas  Co.,  17  R  L  the  real  cause  of  the  accident,  by 

199.    In  actions  by  employees  for  in-  proving  the  circumstances  and  thus 

juries  received  on  account  of  defect-  raising  that,  if  the  defendant  does 

ive  machinery,  the  happening  of  the  not  choose  to  give  the  explanation, 

accident  itself  may  amount  toprima  the  real  cause  was  negligence  on  the 

facie  evidence  of  negligence,  when  part  of  the  defendant."    See  Suke- 

the  instrumentality  of  the  accident  forth  v.  Lord,  87  CaL  399. 


§  226.]  EULES   TO   PRODUCE   CERTAINTY    IN   ISSUE.  4:27 

a  more  general  statement  is  allowed  than  when  title  is  set  up 
in  the  party  himself.  (^)  So  in  an  action  of  covenant  the 
plaintiff  declared  that  the  defendant,  by  indenture,  demised 
to  him  certain  premises,  with  a  covenant  that  he,  the  defend- 
ant, had  full  power  and  lawful  authority  to  demise  the  same 
according  to  the  form  and  effect  of  the  said  indenture;  and 
then  the  plaintiff  assigned  a  breach  that  the  defendant  had 
not  full  power  and  lawful  authority  to  demise  the  said  prem- 
ises, according  to  the  form  and  effect  of  the  said  indenture. 
After  verdict  for  the  plaintiff  it  was  assigned  for  error  that 
he  had  not  in  his  declaration  shown  "  what  person  had  right, 
title,  estate  or  interest  in  the  lands  demised,  by  which  it  might 
appear  to  the  court  that  the  defendant  had  not  full  power  and 
lawful  authority  to  demise."  But,  "  upon  conference  and  de- 
bate amongst  the  justices,  it  was  resolved  that  the  assignment 
of  the  breach  of  covenant  was  good;  for  he  has  followed  the 
words  of  the  covenant  negatively ;  and  it  lies  more  properly 
in  the  knowledge  of  the  lessor  what  estate  he  himself  has  in 
the  land  which  he  demises  than  the  lessee,  who  is  a  stranger 
to  it."  (r)  So,  where  the  defendant  had  covenanted  that  he 
would  not  carry  on  the  business  of  a  rope-maker,  or  make 
cordage  for  any  person,  except  under  contracts  for  govern- 
ment, and  the  plaintiff,  in  an  action  of  covenant,  assigned  for 
breach  that  after  the  making  of  the  indenture  the  defendant 
carried  on  the  business  of  a  rope-maker  and  made  cordage  for 
divers  and  very  many  persons,  other  than  by  virtue  of  any 
contract  for  government,  etc. ;  the  defendant  demurred  spe- 
cially on  the  ground  that  the  plaintiff  "  had  not  disclosed  any 
and  what  particular  person  or  persons  for  whom  the  defend- 
ant made  cordage,  nor  any  and  what  particular  quantities  or 
kinds  of  cordage  the  defendant  did  so  make  for  them,  nor  in 
what  manner,  nor  by  what  acts,  he  carried  on  the  said  busi- 
ness of  a  rope-maker,  as  is  alleged  in  the  said  breach  of  cove- 
nant." But  the  court  held  "  that  as  the  facts  alleged  in  these 
breaches  lie  more  properly  in  the  knowledge  of  the  defend- 
ant, who  must  be  presumed  conusant  of  his  own  dealings 
than  of  the  plaintiff's,  there  was  no  occasion  to  state  them 
with  more  particularity,"  and  gave  judgment  accordingly.  (*) 

(g)  Vide  supra,  pp.  402,  403. 

(r)  Robert  Bradshaw's  Case,  9  Rep.  60  b. 

(«)  Gale  v.  Read,  8  East,.80. 


428  RULES   TO   PRODUCE    CERTAINTY    IN   ISSUE.      [§§  227,  228. 

§  227.  10.  less  particularity  is  necessary  in  the  state- 
ment of  matter  of  inducement  or  aggravation  than  in  the 
main  allegations,  (t) l — This  rule  is  exemplified  in  the  case  of 
the  derivation  of  title,  where,  though  it  is  a  general  rule  that 
the  commencement  of  a  particular  estate  must  be  shown,  yet  an. 
exception  is  allowed  if  the  title  be  alleged  by  way  of  induce- 
ment only,  (u)  So  where,  in  assumpsit,  the  plaintiff  declared 
that  in  consideration  that  at  the  defendant's  request  he  had 
given  and  granted  to  him,  by  deed,  the  next  avoidance  of  a 
certain  church,  the  defendant  promised  to  pay  £100,  but  the 
declaration  did  not  set  forth  any  time  or  place  at  which  such 
grant  was  made,  upon  this  being  objected  in  arrest  of  judg- 
ment after  verdict  the  court  resolved  that  "  it  was  but  an  in- 
ducement to  the  action,  and  therefore  needed  not  to  be  so 
precisely  alleged,"  and  gave  judgment  for  the  plaintiff,  (a?)  So 
in  trespass  the  plaintiff  declared  that  the  defendant  broke 
and  entered  his  dwelling-house,  and  "  wrenched  and  forced 
open,  or  caused  to  be  wrenched  and  forced  open,  the  closet- 
doors,  drawers,  chests,  cupboards  and  cabinets  of  the  said 
plaintiff."  Upon  special  demurrer  it  was  objected  that  the 
number  of  closet-doors,  drawers,  chests,  cupboards  and  cabi- 
nets was  not  specified.  But  it  was  answered  "  that  the  break- 
ing and  entering  the  plaintiff's  house  was  the  principal  ground 
and  foundation  of  the  present  action,  and  all  the  rest  are  not 
foundations  of  the  action,  but  matters  only  thrown  in  to  ag- 
gravate the  damages ;  and  on  that  ground  need  not  be  par- 
ticularly specified."  And  of  that  opinion  was  the  whole 
court,  and  judgment  was  given  for  the  plaintiff,  (y) 

§  228.  11.  With  respect  to  acts  valid  at  common  law  but 
regulated  as  to  the  mode  of  performance  by  statute,  it  is 
sufficient  to  use  such  certainty  of  allegation  as  was  suffi- 
cient before  the  statute,  (s)  —  Thus,  by  the  common  law,  a 

(O  Co.  LItt.  803  a;  Bac.  Ab.,  Pleas,  etc.,  pp.  322, 348  (5th  ed.);  Com.  Dig.,  Pleader  (E.  43)t 
(E.  10);  Dock  PL  283;  Wetherell  v.  Clarkson,  12  Mod.  597;  Chamberlain  v.  Greenfield,  S 
Wils.  292;  Alsope  v.  Sytwell,  Yelv.  17;  Riggs  v.  Bullingham,  Cro.  Eliz.  715;  Woolaston  v 
Webb,  Hob.  18;  Bishop  of  Salisbury's  Case,  10  Rep.  59  b;  1  Saund.  274,  n.  L 

(u)  Vide  gupra,  p.  397. 

(a;)  Riggs  v.  Sullingham,  Cro.  Eliz.  715. 

(y)  Chamberlaim  V.  Greenfield,  3  Wils.  298. 

(z)  1  Saund.  276,  n.  2;  Id.  211;  Anon.,  Salk.  519;  Birch  v.  Bellamy,  12  Mod.  540;  Bac.  Ab.f 
Statute  (L.)  3,  4  Hen.  7,  8. 

1  Matters  of  inducement  leading  up  render  a  complaint  ambiguous,  un- 
to a  contract  counted  upon  do  not  certain  or  unintelligible.  Henke  T. 


§  228.]  BULBS   TO   PEODUCB   CERTAINTY   IN   ISSUE.  429 

lease  for  any  number  of  years  might  be  made  by  parol  only ; 
but  by  the  Statute  of  Frauds,  29  Car.  2,  ch.  3,  sees.  1,  2,  all  leases 
and  terms  for  years  made  by  parol  and  not  put  in  writing, 
and  signed  by  the  lessors  or  their  agents  authorized  by  writ- 
ing, shall  have  only  the  effect  of  leases  at  will,  except  leases 
not  exceeding  the  term  of  three  years  from  the  making.  Yet, 
in  a  declaration  of  debt  for  rent  on  a  demise,  it  is  sufficient 
(as  it  was  at  common  law)  to  state  a  demise  for  any  number 
of  years  without  showing  it  to  have  been  in  writing,  (a)  So, 
in  the  case  of  a  promise  to  answer  for  the  debt,  default  or 
miscarriage  of  another  person  (which  was  good  by  parol  at 
common  law,  but  by  the  Statute  of  Frauds,  sec.  4,  is  not  valid 
unless  the  agreement,  or  some  memorandum  or  note  thereof, 
be  in  writing  and  signed  by  the  party,  etc.),  the  declaration 
on  such  promise  need  not  allege  a  written  contract.  (5)1 

As  to  this  rule,  however,  a  distinction  is  taken  between  a 
declaration  and  aplea  and  it  is  said  that  though  in  the  former 
the  plaintiff  need  not  show  the  thing  to  be  in  writing,  in  the 
latter  the  defendant  must.  Thus,  in  an  action  of  indebitatus 
assumpsit  for  necessaries  provided  for  the  defendant's  wife, 
the  defendant  pleaded  that  before  the  action  was  brought  the 
plaintiff  and  defendant,  and  one  J.  B.,  the  defendant's  son,  en- 
tered into  a  certain  agreement  by  which  the  plaintiff,  in  dis- 
charge of  the  debt  mentioned  in  the  declaration,  was  to  accept 
the  said  J.  B.  as  his  debtor  for  £9,  to  be  paid  when  he  should 
receive  his  pay  as  a  lieutenant,  and  that  the  plaintiff  accepted 
the  said  J.  B.  for  her  debtor,  etc.  Upon  demurrer  judgment 
was  given  for  the  plaintiff,  for  two  reasons :  first,  because  it 
did  not  appear  that  there  was  any  consideration  for  the  agree- 
ment; secondly,  that  admitting  the  agreement  to  be  valid, 
yet  by  the  Statute  of  Frauds  it  ought  to  be  in  writing,  or  else 
the  plaintiff  could  have  no  remedy  thereon;  "and  though 

(a)  1  Saund.  276,  n.  1. 

(6)  1  Saund.  211;  Anon.,  2  Salk.  Bid. 

Eureka  Endowment  Ass'n,  100  Cal.  Mich.   136.     In  Indiana  and  Iowa 

429;  1  Chitty,  PL  *297.  the  rule  has  been  changed  by  stat- 

JEcker  v.  Bohn,  45  Md.  278;  Mul-  ute,  and  where  the  contract  does  not 

laly  v.  Holden,  123  Mass.  583;  Walker  appear  to  be  in  writing  the  presump- 

v.  Richards,  39  N.  H.  259;  Speyer  v.  tion  is  that  it  is  verbaL     Pulse  v. 

Desjardins,  144  111.  641;  Harris  Pho-  Miller,  81  Ind.  190;  Babcock  v.  Meek. 

tographic  Supply  Co.  v.  Fisher,  81  45  la.  137.     "It  is  an  elementary 

28 


430 


RULES    TO   PEODUCE    CERTAINTY    IN    ISSUE. 


[§  228. 


upon  such  an  agreement  the  plaintiff  need  not  set  forth  the 
agreement  to  be  in  writing,  yet  when  the  defendant  pleads 
such  an  agreement  in  bar,  he  must  plead  it  so  as  it  may  appear 
to  the  court  that  an  action  will  lie  upon  it;  for  he  shall  not 
take  away  the  plaintiff's  present  action  and  not  give  her  an- 
other upon  the  agreement  pleaded."  (c) 1 

(c)  Case  v.  Barber,  Raym.  450.  It  is  observed  that  the  plea  was  at  all  events  a  bad  one 
in  reference  to  the  first  objection.  The  case  is,  perhaps,  therefore  not  decisive  as  to  the 
validity  of  the  second. 


principle  in  pleading  that  where  a 
statute,  upon  certain  conditions, 
confers  a  right  or  gives  a  remedy 
unknown  to  the  common  law,  the 
party  asserting  the  right  or  availing 
himself  of  the  remedy  must,  in  his 
pleading,  bring  himself  or  his  case 
clearly  within  the  statute."  Haskins 
et  aL  v.  Alcott  et  al.,  13  Ohio  St  210. 


i  Gulleg  v.  Macy,  84  N.  C.  434;  May- 
bee  v.  Moore,  90  Mo.  340.  Greater 
certainty  is  required  in  pleading  title 
or  authority  than  in  declaring  it. 
1  Chit  PL  560,  citing  Gunstead  v. 
Marlow,  4  Term,  719;  Conger  v. 
Cropsey,  3  Johns.  242. 


CHAPTER  XI. 


OF  RULES  WHICH  TEND  TO   PREVENT   OBSCURITY   AND   CON- 
FUSION IN  PLEADING. 

RULE  L 
§  229.  Pleadings  must  not  be  insensible  nor  repugnant,  (d) 

First,  if  a  pleading  be  unintelligible  (or,  in  the  language  of 
pleading,  insensible)  by  the  omission  of  material  words,  etc., 
this  vitiates  the  pleading,  (e) l 

Again,  if  a  pleading  be  inconsistent  with  itself,  or  repugnant, 
this  is  ground  for  demurrer.2 

Thus  where,  in  an  action  of  trespass,  the  plaintiff  declared 
for  taking  and  carrying  away  certain  timber  lying  in  a  cer- 
tain place,  for  the  completion  of  a  house  then  lately  built,  this 
declaration  was  considered  as  bad  for  repugnancy,  for  the 

(d)  Com.  Dig.,  Pleader  (C.  23);  Wyat  y.  Alaud,  1  Salk.  334;  Bac.  Ab.,  Pleas,  etc.  (I.)  4; 
Nevil  v.  Soper,  1  Salk.  213;  Butts'  Case,  7  Rep.  25;  Hutchinson  v.  Jackson,  2  Lut.  1334;  Via. 
Ab.,  Abatement  (D.  a). 

(e)  Com.  Dig.,  Pleader  (C.  23);  Wyat  v.  Alaud,  1  Salk.  334. 


iLibbey  v.  Brown,  4  Pick.  137; 
Puterbaugh's  Com.  L.  Prac.  171. 

2  Raymond  v.  People,  9  III  App. 
344;  .Barber  v.  Summers,  5  Blackf. 
339;  Hewett  v.  Brown,  21  Minn.  163; 
Seattle  Nat.  Bank  v.  Carter,  13  Wash. 
281.  The  idea  that  inconsistent  de- 
fenses could  be  tolerated  under  the 
code  received  a  stimulus  from  Mr. 
Pomeroy's  affirmation  (Remedies  & 
Remedial  Rights,  sec.  722),  that  by 
overwhelming  weight  of  authority 
they  were  allowed  by  the  code.  "  We 
are  forced  to  the  conclusion,"  says 
the  court  in  the  last  case,  "  that  the 
learned  author  was  unwarranted  in 
making  the  assertion."  There  is  no 
practical  difference  between  the 
modern  code  provision  allowing  sev- 
eral matters  of  defense  and  the  mod- 
ern practice  act  modifying  the  stat- 
ute of  Ann,  and  allowing  a  defendant 
to  plead  as  many  matters  of  fact  as 


he  sees  fit  without  leave.  See  for  in- 
consistency, ante,  p.  366.  The  code 
practice  has  introduced  some  con- 
trariety of  decision  as  to  the  manner 
of  taking  advantage  of  repugnancy 
and  inconsistency.  In  some  states  it 
is  ground  for  demurrer.  Fleischman 
v.  Bennett,  87  N.  Y.  238.  Contra,  Me- 
Donough  v.  Kane,  75  Ind.  181.  In 
some  it  is  held  that  the  demurrer 
must  be  special.  Heeser  v.  Miller.  77 
Cal.  192.  In  some,  by  motion  to  strike 
out  one,  requiring  the  pleader  to  elect 
which.  Taber  v.  Com.  Nat.  Bank,  62 
Fed.  Rep.  383;  Hewett  v.  Brown,  21 
Minn.  163.  Inconsistent  defenses  in 
an  answer  may  be  demurred  to  or 
reached  by  motion  to  strike  out;  if 
not  taken  advantage  of  at  trial  they 
are  waived.  Uridias  v.  Morrell,  25 
Cal.  31;  Klink  v.  Cohen,  13  id.  623; 
Arnold  v.  Dimon.  4  Sandf.  680. 


432  EULES   TO    PKEVENT   OBSCURITY   AND   CONFUSION.       [§  230, 

timber  could  not  be  for  the  building  of  a  house  already 
built.  (/)  So  where  the  defendant  pleaded  a  grant  of  a  rent 
out  of  a  term  of  years,  and  proceeded  to  allege  that  by  virtue 
thereof  he  was  seized  in  his  demesne,  as  of  freehold,  for  the 
term  of  his  life,  the  plea  was  held  bad  for  repugnancy,  (g)  But 
there  is  this  exception :  That  if  the  second  allegation,  which 
creates  the  repugnancy,  is  merely  superfluous  and  redundant,, 
so  that  it  may  be  rejected  from  the  pleading  without  materi- 
ally altering  the  general  sense  and  effect,  it  shall  in  that  case 
be  rejected  and  shall  not  vitiate  the  pleading,  for  the  maxim  is 
utile,  per  inutile,  non  vitiatur.  (A)  * 

RULE  IL 

§  230.  Pleadings  must  not  be  ambiguous  or  doubtful  in 
meaning;  and  when  two  different  meanings  present  them- 
selves, that  construction  shall  be  adopted  which  is  most 
unfavorable  to  the  party  pleading.  (*)*  — 

[This  ancient  rule,  universal  in  its  application  to  all  forms  of 
procedure,  is  stated  too  broadly  in  the  text. 

(/)  Nevil  v.  Soper,  1  Salk.  213. 

(g)  Butts1  Case,  7  Rep.  25. 

(h)  Gilb.  C.  P.  181-2;  The  King  v.  Stevens,  5  East,  255;  Wyat  v.  Alaud,  1  Salk.  324-5;  2 
Saund.  306,  n.  14;  Co.  Litt.  303  b. 

(t)  Co.  Litt.  303  b;  Purcell  v.  Bradley,  Yelv.  36;  Devaston  v.  Payne,  2  H.  Bl.  530;  Thorn- 
ton v.  Adams,  5  M.  &  S.  38. 

1  The    King    v.    Hollingberry,    6  right  or  deriving  his  title,  the  con- 
Dowl.  &   Ry.  345,  4  Barn.  &   Ores,  struction  most  unfavorable  to  him 
328;  Briston  v.  Wright,  Doug.  665,  1  will    be   adopted    when    there   are 
Smith's  L.  C.  1417;  Sneeden  v.  Har-  equivocal  or  uncertain  allegations  in 
riss,  109  N.  C.  349,  14  L.  R.  A.  389;  the  plea.    Henkel  v.  Heymau,  91  111. 
Goff  v.  Toledo,  St  L.  &  K.  C.  R,  28  96. 

111.  App,  529;  Crawley  v.  Com.,  123  A  construction  of  doubtful  or  un- 

Pa.  St.  275.    Such  allegations  may  be  certain  allegations  which  enables  a 

stricken  from  an  answer.    Tabor  v.  party,  by  thus  pleading,  to  throw 

Commercial  Nat.  Bank,  62  Fed.  Rep.  upon  his   adversary  the  hazard  of 

383.  correctly  interpreting  their  meaning, 

2  Lord  v.  Ocean  Bank,  20  Pa.  St.  is  no  more  allowable  now  than  for- 

384,  59  Am.  Dec.  728;  Green  v.  Covil-  merly;  and  when  a  pleading  is  sus- 
land,  10  Cal.  317,  70  Am.  Dec.  725;  ceptible  of  two  meanings,  that  shall 
Taylor  v.  Shew,  39  Cal.  536,  2  Am.  be  taken  which  is  most  unfavorable 
Rep.  478;  Bush  v.  Dunham,  4  Mich,  to  the  pleader.    Clark  v.  Dillon,  97 
339;   Browne  v.  Moore,  32  id.  254;  N.  Y.  370:  Isaacs  v.  Holland,  4  Wash. 
Moore  v.  Com.,  6  Met.  243,  39  Am.  53;  Supply   Ditch  Co.  v.  Elliott,  10 
Dec.  734;  Allen  v.  Patterson,  3  Seld.  Colo.  327,  3  Am.  St  Rep.  586.    The 
476;  Kohn  v.  Hinshaw,  17  Oreg.  308;  rule  is  applied  in  equity.  Stephen  v. 
Evans  v.  Collier,  79  Ga.  315.  Beall,  22  Wall.  329. 

Where  the  pleader  is  stating  his 


§  230.]       RULES   TO    PREVENT   OBSCURITY    AND   CONFUSION.  433 

On  demurrer,  on  motion  to  make  more  specific  and  certain, 
the  rule  is  strictly  enforced.1  But  in  every  situation  other  than 
the  point  where  the  ambiguity  can  be  removed  without  delay 
or  expense,  the  rule  does  not  apply.  Thus  Chitty  says:  "  The 
maxim  must  be  received  with  this  qualification :  that  the  lan- 
guage of  the  pleading  is  to  have  a  reasonable  intendment  and 
construction ;  and  where  an  expression  is  capable  of  different 
meanings,  that  shall  be  taken  which  will  support  the  declara- 
tion."2 

Omitted  allegations  after  verdict. —  Judge  Story,  in  Dobson 
v.  Campbell,3  said :  "  The  general  principle  of  law  is  that,  where 
a  matter  is  so  essentially  necessary  to  be  proved  to  establish 
the  plaintiff's  right  to  recovery  that  the  jury  could  not  be  pre- 
sumed to  have  found  a  verdict  for  him  unless  it  had  been 
proved  at  the  trial,  there  the  omission  to  state  the  matter  in 
express  terms  in  the  declaration  is  cured  by  the  verdict,  if  the 
general  terms  of  the  declaration  are  otherwise  sufficient  to 
comprehend  it."  Such  was  also  the  doctrine  of  Lord  Ellen- 
borough  in  1  Maule  &  S.  234,  in  which  he  stated  that:  "  Where 
a  matter  is  so  essentially  necessary  to  be  proved  that,  had  it 
not  been  given  in  evidence,  the  jury  could  not  have  given  such 
a  verdict,  then  the  want  of  stating  that  matter  in  express 
terms  in  a  declaration,  provided  it  contains  terms  sufficiently 
general  to  comprehend  it  in  fair  and  reasonable  intendment, 
will  be  cared  by  a  verdict;  and  where  a  general  allegation 
must,  in  fair  construction,  so  far  require  to  be  restricted  that 
no  judge  and  no  jury  could  have  properly  treated  it  in  an  un- 
restrained sense,  it  may  reasonably  be  presumed,  after  verdict, 
that  it  was  so  restrained  at  the  trial." 4] 

1  Lovell  v.  De  Bardelaben  Co.,  90  at  the  trial,  has  been  affirmed  over 

Ala.  13.  and  over  again  in  a  long  series  of 

2lCh.  PL  *237;  Case  v.  Humphrey,  cases  running  through  our  reports 

6  Conn.  130;  Shanahan  v.  Tallman,  39  from  the  first  volume  down  to  the 

Kan.  185.  case  of  Hughes  v.  Wheeler,  76  Cal. 

31  Sumn.  319,  7  Fed.  Cas.  783.  230,  18  Pac.  Eep.  386."    Bliss,  Code 

4  In  Sukeforth  v.  Lord,  87  Cal.  399,  PL,  §  310,  par.  3;  Id.,  §  310a;  Cun- 

Mr.  Chief  Justice  Beatty  said:  "This  ningham  v.  Railway  Co.,  4  Utah,  206; 

proposition,  that  the  failure  to  allege  Lee  v.  Figg,  37  Cal.  335;  Voorhees 

the  particular  facts  constituting  v.  Manti  City,  13  Utah,  435;  Wim- 

fraud,  or  estoppel,  or  other  special  mer  v.  Simon,  9  Utah,  378;  Donnel- 

defenses  pleaded  in  general  terms,  Ian  v.  Hardy,  57  Ind.  393;  Rolseth  v. 

may  be  waived  by  failure  to  demur  Smith,  38  Minn.  14;  Railway  Co.  v. 

or  to  object  to  the  evidence  offered  Bates  (Ind.  Sup.),  45  N.  E.  Rep.  108; 


434  RULES   TO   PREVENT    OBSCURITY    AND    CONFUSION.       [§  231. 

Thus  if,  in  trespass  quare  clausum  frcgit,  the  defendant  pleads 
that  the  locus  in  quo  was  his  freehold,  he  must  allege  that  it 
was  his  freehold  at  the  time  of  the  trespass;  otherwise  the  plea 
is  insufficient,  (k)  So  in  debt  on.  a  bond  conditioned  to  make 
assurance  of  land,  if  the  defendant  pleads  that  he  executed  a 
release,  his  plea  is  bad  if  it  does  not  express  that  the  release  con- 
cerns the  same  land.  (I)  In  trespass  quare  clausum  fregit,  and 
for  breaking  down  two  gates  and  three  perches  of  hedges,  the 
defendant  pleaded  that  the  said  close  was  within  the  parish  of 
B,.,  and  that  all  the  parishioners  there  from  time  immemorial 
had  used  to  go  over  the  said  close  upon  their  perambulation 
in  Rogation  week;  and  because  the  plaintiff  had  wrongfully- 
erected  two  gates  and  three  perches  of  hedges  in  the  said  way,, 
the  defendant,  being  one  of  the  parishioners,  broke  down  those 
gates  and  those  three  perches  of  hedges.  On  demurrer  it  was 
objected  that,  though  the  defendant  had  justified  the  breaking 
down  two  gates  and  three  perches  of  hedges,  it  does  not  ap- 
pear that  they  were  the  same  gates  and  hedges  in  respect  of 
which  the  plaintiff  complained ;  it  not  being  alleged  that  they 
were  the  gates  and  hedges  "  aforesaid  "  or  the  gates  and  hedges 
"in  the  declaration  mentioned"  "And  thereto  agreed  all  the 
justices  that  this  fault  in  the  bar  was  incurable.  For  Walmsley 
said  that  he  thereby  doth  not  answer  to  that  for  which  the 
plaintiff  chargeth  him."  And  he  observed  that  the  case  might 
be  that  the  plaintiff  had  erected  four  gates  and  six  perches  of 
hedges;  and  that  the  defendant  had  broken  down  the  whole 
of  these,  having  the  justification  mentioned  in  the  plea  in  re- 
spect of  two  gates  and  three  perches  only,  and  no  defense  as. 
to  the  remainder;  and  that  the  action  might  be  brought  in 
respect  of  the  latter  only,  (m) 

§  231.  Degree  of  certainty  required. —  A  pleading,  how- 
ever, is  not  objectionable,  as  ambiguous  or  obscure,  if  it  be 
certain  to  a  common  intent,  (n) 1  that  is,  if  it  be  clear  enough  ac- 

(fc)  Com.  Dig.,  Pleader  (E.  5). 
(I)  Com.  Dig.,  ubi  supra,  Mauser's  Case,  2  Rep.  3. 
(m)  Cro.  Eliz.  441. 

(n)  Com.  Dig.,  Pleader  (E.  7),  (F.  17) ;  1  Saund.  49,  n.  1;  Long's  Case,  5  Rep.  121  a;  Doct» 
PI.  68;  Colthirst  v.  Bejushin,  Plow.  26,  28,  33;  Fulmerston  v.  Stunard,  id.  102;  Cooper  v. 

Hall  v.  Railway  Co.,  74  Mo.  298.  The  Certainty  is  of  three  kinds:  (1)  To- 
same  is  held  in  Penn.  Ry.  Co.  v.  a  common  intent;  (2)  to  a  certain  in« 
Ellett,  132  III  654.  tent  in  general,  as  in  indictments  j 


§  232.]      EULES   TO   PREVENT   OBSCURITY   AND   CONFUSION.  435 

cording  to  reasonable  intendment  or  construction,  though  not 
worded  with  absolute  precision.  (0} l  Thus,  in  debt  on  a  bond 
conditioned  to  procure  A.  S.  to  surrender  a  copyhold  to  the 
use  of  the  plaintiff,  a  plea  that  A.  S.  surrendered  and  released 
the  copyhold  to  the  plaintiff  in  full  court,  and  the  plaintiff 
accepted  it,  without  alleging  that  the  surrender  was  to  the 
plaintiff'1  s  use,  is  sufficient;  for  this  shall  be  intended,  (p)  So, 
in  debt  on  a  bond  conditioned  that  the  plaintiff  shall  enjoy 
certain  land,  etc.,  a  plea  that  after  the  making  of  the  bond, 
until  the  day  of  exhibiting  the  bill,  the  plaintiff  did  enjoy,  is 
good,  though  it  be  not  said  that  always  after  the  making 
until,  etc.,  he  enjoyed,  for  this  shall  be  intended.  (^) 

§  232.  The  negatives  pregnant.2  —  It  is  under  this  head  of 
ambiguity  that  the  doctrine  of  negatives  pregnant  appears  most 
properly  to  range  itself.  A  negative  pregnant  is  such  a  form 
of  negative  expression  as  may  imply  or  carry  within  it  an 
affirmative.3  This  is  considered  as  a  fault  in  pleading,  and 

Monke,  Willes,  52;  The  King  v.  Lyme  Regis,  1  Doug.  159;  Hammond  v.  Dodd.  Cro.  Car.  5; 
Poynter  v.  Poynter,  id.  194;  Dovaston  v.  Payne,  2  H.  Bl.  530;  Jacobs  v.  Nelson,  3  Taunt.  423. 

(o)  It  will  be  observed  that  the  word  "  certain  "  is  here  used,  not  in  the  sense  of  partic- 
ular or  specific,  as  in  former  parts  of  this  work,  but  in  its  other  meaning  of  clear  or  dis- 
tinct. See  the  double  use  of  this  word  noticed,  supra,  p.  260. 

(p)  Hammond  v.  Dod,  Cro.  Car.  6. 

(3)  Harlow  v.  Wright,  id.  195. 

(3)  a  certain  intent  in  every  particu-  Mr.  Pomeroy  says  very  truly:  "As  it 

lar,  as  in  pleas  not  required  by  the  (the  rule  against  the  negative  preg- 

law.    See  supra,  p.  366.  and  Plea  in  nant)  was  not  based  on  any  mere 

Abatement,  supra,  p.  139.  See  1  Bish.  technical   reasons  or    doctrines   of 

Grim.  Proc.  323;  Dovaston  v.  Payne,  pleading,  the  same  rule  is  properly 

3  H.  Black.  530,  2  Smith's  L.  C.  140;  followed  under  the    codes."     Pom. 

Cook  v.  Warner,  88  N.  Y.  37.  Code  Rem.  (3d  ed.),  §  618;   Fish  v. 

1  Spencer  v.  South  wick,  9  Johns.  Eedington,  31  Cal.  185-194.     "To  say 
314;  Oystead  v.  Shed,  12  Mass.  509;  the  least,  a  denial  in  the  form  of  a 
Parker  v.  Burgess,  64  Vt.  442;  Gran-  negative  pregnant  is  such  a  glaring 
nis  v.  Hooker,  29  Wis.  65;  Merkle  v.  violation  of  logical  and  legal  prin- 
Bennington,  68  Mich.  133;  Weiss  v.  ciples  that  it  exhibits  on  the  part  of 
Whittemore,  28  id.  366;   Batterson  the  pleader  ignorance  or  cunning." 
v.  Chicago  &  G.  R.  R.  Co.,  49  id.  184  Pom.  Code  Rem.,  §  623.    See  Whit- 

2  In  a  speech  (post-prandial)  [1880J  ney  v.  Price,  169  Mass.  576. 

which  has  been  much  quoted,  Lord        3  Coal   Co.    v.   Sanitarium    Co.,   7 

Coleridge  made  great  sport  of  the  Utah,  158  (a  case  excellently  illus- 

common-law  rules — among  them  the  trating  the  subject);  Woodworth  v. 

negative  pregnant.     The  rules  and  Knowlton,  22    Cal.    164;    Bradbury 

principles  of  the  text  still  live  and  are  v.    Cronise,    46    id.    287;    Ex    parte 

in  efficacious  use  in  all  jurisdictions.  Wall,  107  U.  S.  265.    In  the  last  case 


436  RULES   TO   PREVENT   OBSCURITY   AND    CONFUSION.       [§  233. 

the  reason  why  it  is  so  considered  is  that  the  meaning  of  such 
a  form  of  expression  is  ambiguous.  In  trespass  for  entering 
the  plaintiff's  house,  the  defendant  pleaded  that  the  plaintiff's 
daughter  gave  him  license  to  do  so,  and  that  he  entered  by 
that  license.  The  plaintiff  replied  that  he  did  not  enter  l)y 
her  license.  This  was  considered  as  a  negative  pregnant;  and 
it  was  held  that  the  plaintiff  should  have  traversed  the  entry 
by  itself,  or  the  license  by  itself,  and  not  both  together,  (r) 
It  will  be  observed  that  this  form  of  traverse  may  imply,  or 
carry  within  it,  that  a  license  was  given,  though  the  defend- 
ant did  not  enter  by  that  license.  It  is  therefore,  in  the  lan- 
guage of  pleading,  said  to  be  pregnant  with  that  admission, 
viz.,  that  a  license  was  given,  (s)  At  the  same  time  the 
license  is  not  expressly  admitted ;  and  the  effect,  therefore,  is 
to  leave  it  in  doubt  whether  the  plaintiff  means  to  deny  the 
license,  or  to  deny  that  the  defendant  entered  by  virtue  of 
that  license.  It  is  this  ambiguity  which  appears  to  constitute 
the  fault,  (t)  The  following  is  another  example :  In  trespass 
for  assault  and  battery  the  defendant  justified  for  that  he, 
being  master  of  a  ship,  commanded  the  plaintiff  to  do  some 
service  in  the  ship,  which  he  refusing  to  do,  the  defendant 
moderately  chastised  him.  The  plaintiff  traversed,  with  an 
dbsque  hoc,  that  the  defendant  moderately  chastised  him;  and 
this  traverse  was  held  to  be  a  negative  pregnant ;  for,  while 
it  apparently  means  to  put  in  issue  only  the  question  of  ex- 
cess (admitting,  by  implication,  the  chastisement),  it  does  not 
necessarily  and  distinctly  make  that  admission,  and  is  there- 
fore ambiguous  in  its  form,  (u)  If  the  plaintiff  had  replied 
that  the  defendant  immoderately  chastised  him,  the  objection 

(r)  Myn  v.  Cole,  Cro.  Jac.  87. 
(s)  Bac.  Ab.,  Pleas,  etc.,  p.  4CO,  5th  ed. 

(t)  28  Hen.  6,  7;  Blade  T.  Drake,  Hob.  296;  Styles'  Pract.  Reg.,  tit  Negative  -Pregnant. 
See  Appendix,  note  (670. 

(u)  Anhirn  v.  James,  Vent.  70;  Sid.  444;  2  Eeb.  623. 

the  charge  was  that  Wall  "did  on,  and  riotous  gathering  or  mob  in  tak- 
etc.,  engage  in,  and  with  an  unlaw-  ing,  etc.,  and  causing  his  death  by 
ful,  tumultuous  and  riotous  gather-  hanging,"  etc.  This  was  held  to  be 
ing,  he  advising  and  encouraging  equivalent  to  an  admission  of  the  sub- 
thereto,  take  from  the  jail,  etc.,  and  stantial  matter  of  the  charge.  See, 
hang,"  etc.  The  respondent  denied  also,  Davison  v.  Powell,  16  How.  Pr. 
counseling,  advising,  encouraging  or  497 ;  Seattle  Nat  Bank  v.  Neerwaldt* 
assisting  an  unlawful,  tumultuous  8  Wash.  630. 


§  233.]      RULES   TO   PREVENT   OBSCURITY   AND   CONFUSION.  437 

would  have  been  avoided;  but  the  proper  form  of  traverse 
would  have  been  de  injuria  sua  propria  dbsque  tali  causa,  (x) 
This,  by  traversing  the  whole  "  cause  alleged,"  would  have 
distinctly  put  in  issue  all  the  facts  in  the  plea,  and  no  am- 
biguity or  doubt  as  to  the  extent  of  the  denial  would  have 
arisen. 

This  rule,  however,  against  a  negative  pregnant  appears,  in 
modern  times  at  least,  to  have  received  no  very  strict  con- 
struction ;  for  many  cases  have  occurred  in  which,  upon  vari- 
ous grounds  of  distinction  from  the  general  rule,  that  form  of 
expression  has  been  held  free  from  objection,  (y).  Thus,  in 
debt  cm  a  bond  conditioned  to  perform  the  covenants  in  an 
indenture  of  lease,  one  of  which  covenants  was  that  the  de- 
fendant, the  lessee,  would  not  deliver  possession  to  any  but 
the  lessor,  or  such  persons  as  should  lawfully  evict  him,  the 
defendant  pleaded  that  he  did  not  deliver  the  possession  to  any 
but  such  as  lawfully  evicted  him.  On  demurrer  to  this  plea  it 
was  objected  that  the  same  was  ill,  and  a  negative  pregnant; 
and  that  he  ought  to  have  said  that  such  an  one  lawfully 
evicted  him,  to  whom  he  delivered  the  possession,  or  that  he 
did  not  deliver  the  possession  to  any ;  but  the  court  held  the 
plea,  as  pursuing  the  words  of  tJie  covenant,  good,  being  in  the 
negative,  and  that  the  plaintiff  ought  to  have  replied  and  as- 
signed a  breach;  and  therefore  judgment  was  given  against 
him.  (2) 

RULE  IIL 

§233.  Pleadings  must  not  be  argumentative,  (a)  — 

In  other  words,  they  must  advance  their  positions  of  fact 
in  an  absolute  form,  and  not  leave  them  to  be  collected  by 
inference  and  argument  only.1 

(a?)  Anhirn  v.  James,  Vent.  70.    See,  as  to  the  traverse  de  injuria,  supra,  p.  287. 
(y)  See  several  cases  mentioned  in  Com.  Dig.,  Pleader  (R.  6). 

(z)  Pullin  y.  Nicholas,  1  Lev.  83.  Vide  Com.  Dig.,  Pleader  (R.  6).  Semb.  conk,  Lea  T. 
Luthell,  Cro.  Jac.  559. 

(o)  Bac.  Ab.,  Pleas,  etc.  (L)  8;  Com.  Dig.  (E.  3);  Co.  Ldtt  803  a. 

1  Thompson  v.  Hunger,  15  Tex.  Morris  v.  Thomas,  57  Ind.  316 ;  De 
523 ;  Fletcher  v.  Peck,  6  Cranch,  87 ;  Forrest  v.  Butler,  62  la,  78.  It  is  no 
Spencer  v.  Southwick,  9  Johns.  313.  plea  of  a  fact  to  plead  another  fact 
This  is  true  under  all  systems  of  from  which,  if  in  evidence,  the  mate- 
pleading.  Supply  Ditch  Co.  v.  El-  rial  fact  may  be  inferred.  Mishner 
liott,  10  Colo.  327,  3  Am.  St  Rep.  586 ;  v.  Granger,  4  Gilm.  78 ;  Spruck  v.  For- 


438  KULES    TO   PREVENT   OBSCURITY    AND   CONFUSION.       [§  233. 

Thus,  in  an  action  of  trover  for  ten  pieces  of  money,  the 
defendant  pleaded  that  there  was  a  wager  between  the  plaint- 
iff and  one  C.  concerning  the  quantity  of  yards  of  velvet  in  a 
cloak;  and  the  plaintiff  and  C.  each  delivered  into  the  defend- 
ant's hand  ten  pieces  of  money,  to  be  delivered  to  C.  if  there 
were  ten  yards  of  velvet  in  the  cloak,  and  if  not,  to  the  plaint- 
iff; and  proceeded  to  allege  that,  upon  measuring  of  the  cloak, 
it  was  found  that  there  were  ten  yards  of  velvet  therein;  where- 
upon the  defendant  delivered  the  pieces  of  money  to  C.  Upon 
demurrer,  "  Gawdy  held  the  plea  to  be  good  enough;  for  the 
measuring  thereof  is  the  fittest  way  for  the  trying  it,  and 
when  it  is  so  found  by  the  measuring,  he  had  good  cause  to 
deliver  them  out  of  his  hands  to  him  who  had  won  the  wager. 
But  Tenner  and  Popham  held  that  the  plea  was  not  good ;  for 
it  may  be  that  the  measuring  was  false ;  and  therefore  he 
ought  to  have  averred,  in  fact,  that  there  were  ten  yards ;  and 
that  it  was  so  found  upon  the  measuring  thereof."  (5)  So  in 
an  action  of  trespass,  for  taking  and  carrying  away  the  plaint- 
iff's goods,  the  defendant  pleaded  that  the  plaintiff  never  had 
any  goods.  "  This  is  an  infallible  argument,  that  the  defend- 
ant is  not  guilty,  and  yet  it  is  no  plea."  (c)  Again,  in  eject- 
ment, the  defendant  pleaded  a  surrender  of  a  copyhold,  by 
the  hand  of  Fosset,  then  steward  of  the  manor.  The  plaintiff 
traversed  that  Fosset  was  steward.  All  the  court  held  this  to 
be  no  issue,  and  that  the  traverse  ought  to  be  that  he  did  not 
surrender;  for  if  he  were  not  steward  the  surrender  is  void,  (d) 
The  reason  of  this  decision  appears  to  be  that  to  deny  that 
Fosset  was  steward  could  be  only  so  far  material  as  it  tended 
to  show  that  the  surrender  was  a  nullity ;  and  that  it  was, 
therefore,  an  argumentative  denial  of  the  surrender;  which, 
if  intended  to  be  traversed,  ought  to  be  traversed  in  a  direct 
form. 

(6)  Ledesham  v.  Lubram,  Cro.  Eliz.  870. 

(c)  Dock  PL  41;  Dyer,  43. 

(d)  Wood  v.  Butts,  Cro.  Eliz.  260. 

sythe,  40  III  440;  Dyett  v.  Pendle-  (Daniels  v.  Fowler,  120  N.  C.  14),  and 

ton,  8  Conn.  728;  Church  v.  Oilman,  is  aided  by  pleading  over.    Cover  v. 

15  Wend.  656;   Daniels  v.  Hallen-  Armstrong,  66  111.  267.   But  an  argu« 

beck,  19  Wend.  410.  Argumentative-  mentative  denial  which  contained 

ness  must  be  raised  by  special  de-  facts  constituting  a  defense  was  held 

murrer  or  motion  to  make  definite  good  in  Loeb  v.  Weis,  64  Ind.  285. 


§§  234,  235.]     EULES  TO  PREVENT  OBSCURITY  AND  CONFUSION.    439 

§  234.  Two  affirmatives  do  not  make  a  good  issue. —  It  is 

a  branch  of  this  rule  that  two  affirmatives  do  not  make  a  good 
issue,  (e)  The  reason  is,  that  the  traverse  by  the  second 
affirmative  is  argumentative  in  its  nature.  Thus,  if  it  be  al- 
leged by  the  defendant  that  a  party  died  seised  in  fee,  and  the 
plaintiff  allege  that  he  died  seised  in  tail,  this  is  not  a  good 
issue,  (f)  because  the  latter  allegation  amounts  to  a  denial  of 
a  seisin  in  fee,  but  denies  it  by  argument  or  inference  only.  It 
is  this  branch  of  the  rule  against  argumentativeness  that  gave 
rise  (as  in  part  already  explained)  (g)  to  the  form  of  a  special 
traverse.  Where,  for  any  of  the  reasons  mentioned  in  a  pre- 
ceding part  of  this  work,  it  becomes  expedient  for  a  party 
traversing  to  set  forth  new  affirmative  matter,  tending  to  ex- 
plain or  qualify  his  denial,  he  is  allowed  to  do  so ;  but  as  this, 
standing  alone,  will  render  his  pleading  argumentative,  he  is 
required  to  add  to  his  affirmative  allegation  an  express  denial, 
which  is  held  to  cure  or  prevent  the  argumentativeness.  (h) 
Thus  in  the  example  last  given  the  plaintiff  may  allege,  if  he 
pleases,  that  the  party  died  seised  in  tail ;  but  then  he  must 
add  absque  hoc,  that  he  died  seised  in  fee,  and  thus  resort  to 
the  form  of  a  special  traverse,  (t)  The  doctrine,  however, 
that  two  affirmatives  do  not  make  a  good  issue  is  not  taken 
so  strictly  but  that  the  issue  will  in  some  cases  be  good,  if 
there  is  a  sufficient  negative  and  affirmative  in  effect,  though 
in  the  form  of  words  there  be  a  double  affirmative.  Thus  if 
the  defendant  plead  that  he  was  born  in  France,  and  the 
plaintiff  that  he  was  born  in  England,  this  is  said  to  be  a  good 
issue,  (k)  So  in  debt  on  a  lease  for  years,  when  the  defend- 
ant pleaded  that  the  plaintiff  had  nothing  at  the  time  of  the 
lease  made,  and  the  plaintiff  replied  that  he  was  seised  in  fee, 
this  was  held'  a  good  issue.  (I) 

§  235.  Two  negatives. —  Another  branch  of  the  rule  against 
argumentativeness  is  that  two  negatives  do  not  make  a  good 

(e)  Com.  Dig.,  Pleader  (R.  «);  Co.  Lltt  126  a;  per  BuHer,  J.,  Chandler  T.  Roberto,  Doug. 
60;  Doct.  PI.  43. 

(/)  Doct.  PL  349;  5  Hen.  7, 11, 12. 

(g)  Supra,  p.  SCO. 

(fc)  Bac.  Ab.,  Pleas,  etc.  (H.)  3;  Courtney  T.  Phelps,  Sid.  801;  Herring  T.  Blackknr,  Ox 
Eliz.  80;  10  Hen.  6,  7,  pL  21. 

(t)  Doct.  PI.  349. 

(fc)  Tomlin  v.  Burloe,  1  Wfls.  8. 

(0  Co.  Litt  126  a;  Reg.  Plac.  207,  & 


440  KULES   TO   PKEVENT   OBSCURITY   AND   CONFUSION.       [§  23G. 

issue,  (m)  Thus,  if  the  defendant  plead  that  he  requested  the 
plaintiff  to  deliver  an  abstract  of  his  title,  but  that  the  plaint- 
iff did  not,  when  so  requested,  deliver  such  abstract,  but  neg- 
lected so  to  do,  the  plaintiff  cannot  reply  that  he  did  not 
neglect  and  refuse  to  deliver  such  abstract,  but  should  allege 
affirmatively  that  he  did  deliver,  (n)1 

It  is  a  rule  in  pleading  that  a  party  to  a  deed,  who  traverses 
it,  must  plead  non  estfactum  (viz. :  that  it  is  not  his  deed),  and 
should  not  plead  that  he  did  not  grant,  did  not  covenant,  etc.  (o) 
This  seems  also  to  be  a  branch  or  inference  from  the  rule 
against  argumentativeness ;  for  to  say  that  he  did  not  grant, 
etc.,  is  to  deny  by  argument  or  indirectly  that  the  deed  is  his. 
But,  though  parties  must  plead  non  est  factum,  the  case  is 
different  with  respect  to  strangers;  for  a  stranger  to  the  deed 
ought  to  plead  in  the  other  form,  viz. :  that  the  person  named 
did  not  grant,  etc.  (p} 

RULE  IV. 

§236.  Pleadings  must  not  be  in  the  alternative,  (q) 2  — 

Thus  in  an  action  of  debt  against  a  jailor  for  the  escape  of  a 
prisoner,  where  the  defendant  pleaded  that  if  the  said  pris- 
oner did  at  any  time  or  times  after  the  said  commitment,  etc., 
go  at  large,  he  so  escaped  without  the  knowledge  of  the  de- 
fendant and  against  his  will,  and  that  if  any  such  escape  was 
made  the  prisoner  voluntarily  returned  into  custody  before 
the  defendant  knew  of  the  escape,  etc.,  the  court  held  the 
plea  bad ;  for  "  he  cannot  plead  hypothetically  that  if  there 
has  been  an  escape  there  has  also  been  a  return.  He  must 
either  stand  upon  an  averment  that  there  has  been  no  escape, 
or  that  there  have  been  one,  two  or  ten  escapes,  after  which 
the  prisoner  returned,  (r) 

(m)  Com.  Dig.,  Pleader  (B.  3). 

(n)  Martin  v.  Smith,  6  East,  657. 

(o)  Doct.  PL  361 ;  Lutw.  662;  2  Taunt.  281. 

(p)  2  Hen.  4,  20;  20  Ed.  4, 1;  Doct.  PL  263;  1  Lutw.  662.    See  Appendix,  note  (68). 

(g)  Griffiths  v.  Lyles,  1  Bos.  &  Pul.  413;  Cook  v.  Cox,  3  M.  &  S.  114. 

(r)  Griffiths  v.  Lyles,  1  Bos.  &  Pul.  413. 

iRyan  v.  Vanlandingham,  25  HL  *  Zeidler  v.  Johnson,  38  Wis.  335; 
128.  So  held  under  the  coda  State  Dovan  v.  Dinsmore,  33  Barb.  86 ; 
T.  Logan,  33  Md.  Ladd  v.  Ramsby,  10  Oreg.  207. 


§§  237,  238.]    EULES  TO  PKEVENT  OBSCURITY  AND  CONFUSION.    441 

RULE  V. 

§  237.  Pleadings  must  not  be  by  way  of  recital,  but  must 
be  positive  in  their  form,  (s)1  — 

The  following  example  will  be  sufficient  to  illustrate  this 
kind  of  fault.  If  a  declaration  in  trespass  for  assault  and  bat- 
tery make  the  charge  in  the  following  form  of  expression, — 

"  and  thereupon  the  said  A.  B.,  by ,  his  attorney, 

complains :  For  that,  whereas  the  said  C.  D.  heretofore,  to  wit, 
etc.,  made  an  assault,"  etc.,  instead  of  "  For  that  the  said  C.  D. 
heretofore,  to  wit,  etc.,  made  an  assault,"  etc.,  this  is  bad,  for 
nothing  is  positively  affirmed,  (tf) 

RULE  VL 

§  238.  Things  are  to  be  pleaded  according  to  their  legal 
eifect  or  operation. (u)*  — 

The  meaning  is  that,  in  stating  an  instrument  or  other  mat- 
ter in  pleading,  it  should  be  set  forth,  not  according  to  its  terms 
or  its  form,  but  according  to  its  effect  in  law;  and  the  reason 
seems  to  be  that  it  is  under  the  latter  aspect  that  it  must 
principally  and  ultimately  be  considered ;  and,  therefore,  to 
plead  it  in  terms  of  form  only  is  an  indirect  and  circuitous 

(a)  Bac.  Ab.,  Pleas,  etc.  CB.  4);  Sherland  v.  Heaton,  2  Bulst.  214;  Wettenhall  v.  Sher- 
win,  2  Lev.  206;  Hore  v.  Chapman,  2  Salk.  636;  Dunstall  v.  Dunstall,  2  Show.  27;  Gourney 
v.  Fletcher,  id.  295;  Dobbs  v.  Edmunds,  Lord  Eay.  1413;  Wilder  v.  Handy,  Str.  1151;  Mar- 
shall v.  Eiggs,  id.  1162. 

(f)  Bac.  Ab.,  Pleas,  etc.  (B.)  4;  Sherland  v.  Heaton,  2  Bulst.  214;  Wettenhall  v.  Sherwin, 
2  Lev.  206;  Hore  v.  Chapman,  2  Salk.  636;  Dunstall  v.  Dunstall,  2  Show.  27;  Gourney  v. 
Fletcher,  id.  295;  Dobbs  v.  Edmunds,  Lord  Raym.  1413;  Wilder  v.  Handy,  Str.  1151, 1162. 
It  will  be  observed,  however,  that  in  trespass  on  the  case  the  "  whereas  "  is  unobjectionable, 
being  used  only  as  introductory  to  some  subsequent  positive  allegation.  See  the  same 
cases  and  the  form  of  declaration  in  the  first  chapter. 

(«)  Bac.  Ab.,  Pleas,  etc.  (I.)  7;  Com.  Dig.,  Pleader  (C.  37);  2  Saund.  97,  and  97  b,  n.  2; 
Barker  v.  Lade,  4  Mod.  150;  Moore  v.  Earl  of  Plymouth,  3  Barn.  &  Aid.  66. 

1  Hollingsworth  v.  Holshausen,  17  442.      In    California    it    has    been 
Tex.  41.      The   objection  must  be  held  that  the  facts  from  which  an 
taken  by  special  demurrer,  or  at  implied  promise  arise  must  be  al- 
least  before  verdict.    See  Battrell  v.  leged.    Poley  v.  Williams,  101  Cal. 
Ohio  River  Ry.  Co.,  34  W.  Va.  232.  648.    But  in  New  York  a  common 

2  The  practice  under  this  rule  f  re-  count  is  sufficient.  Terry  v.  Hunger, 
quently  involves  a  fiction,  yet  the  121  N.  Y.  161.    Setting  out  a  written 
rule  is  very  generally  applied  in  code  contract  is  allowable  and  is  suffi- 
states.     Grannis  v.  Hooker,  29  Wis.  cient.  Continental  Ins.  Co.  v.  Rogers, 
65;  Hosley  v.  Black,  28  N.  Y.  438;  119  III  474.    The  rule  is  applied  in 
Kerstetter  v.  Reymond,  10  Ind.  199;  equity  cases.     Hieronymous  v.  N.  Y. 
Bateman  v.  Clark,  37  Mo.  31;  Ault-  Nat.  B.  &  L.  Ass'n,  101  Fed.  Rep.  14. 
man  &  Co.  v.  Siglinger,  2  S.   Dak. 


EULES   TO   PREVENT   OBSCUEITY   AND    CONTUSION.      [§  238. 

method  of  allegation.  Thus,  if  a  joint  tenant  conveys  to  his 
companion  by  the  words  "gives,"  ".grants,"  etc.,  his  estate  in 
the  lands  holden  in  jointure,  this,  though  in  its  terms  a  grant, 
is  not  properly  such  in  operation  of  law,  but  amounts  to  that 
species  of  conveyance  called  a  release.  It  should  therefore  be 
pleaded,  not  that  he  "granted,"  etc.,  but  that  he  "released," 
etc.  (x)  So,  if  a  tenant  for  life  grant  his  estate  to  him  in 
reversion,  this  is,  in  effect,  a  surrender,  and  must  be  pleaded 
as  such,  and  not  as  a  grant,  (y)  So  where  the  plea  stated 
that  A.  was  entitled  to  an  equity  of  redemption,  and,  subject 
thereto,  that  B.  was  seised  in  fee,  and  that  they,  by  lease 
and  release,  granted,  etc.,  the  premises,  excepting  and  reserv- 
ing to  A.  and  his  heirs,  etc.,  a  liberty  of  hunting,  etc.,  it  was 
held  upon  general  demurrer,  and  afterwards  upon  writ  of 
error,  that,  as  A.  had  no  legal  interest  in  the  land,  there  could 
be  no  reservation  to  him;  that  the  plea,  therefore,  alleging 
the  right  (though  in  terms  of  the  deed)  by  way  of  reservation 
was  bad ;  and  that  if  (as  was  contended  in  argument)  the  deed 
would  operate  as  a  grant  of  the  right,  the  plea  should  have 
been  so  pleaded,  and  should  have  alleged  a  grant  and  not  a 
reservation,  (z) l 

The  rule  in  question  is,  in  its  terms,  often  confined  to  deeds 
and  conveyances.  It  extends,  however,  to  all  instruments  in 
writing,  and  contracts,  written  or  verbal;  and,  indeed,  it  may 
be  said,  generally,  to  all  matters  or  transactions  whatever 
which  a  party  may  have  occasion  to  allege  in  pleading,  and  in 
which  the  form  is  distinguishable  from  the  legal  effect.  But 
there  is  an  exception  in  the  case  of  a  declaration  for  written 
or  verbal  slander,  where  (as  the  action  turns  on  the  words 
themselves)  the  words  themselves  must  be  set  forth  and  it  is 
not  sufficient  to  allege  that  the  defendant  published  a  libel 
containing  false  and  scandalous  matters,  in  substance  as  fol- 
lows, etc.,  or  used  words  to  the  effect  following,  etc.  (a)8 

(x)  2  Saund.  87;  Barker  y.  Lade,  4  Mod.  150-1. 

(y)  Barker  v.  Lade,  4  Mod.  151. 

(*)  Moore  v.  Earl  of  Plymouth,  8  Barn.  &  Aid.  68. 

(a)  Wright  v.  Clements,  8  Barn.  &  Aid.  603;  Cook  T.  Cox,  8  M.  &  8.  110;  Newton  r. 
Stubbs,  2  Show.  435.  See  an  example  of  the  manner  in  which  a  libel  is  set  forth,  supra, 
p.  166. 

1  See  Stoddard  v.  Treadwell,  26  CaL        l  See  supra,  p.  167. 
294;    Jones   v.  Louderman,  39  Ma 
287. 


§  239.]      KULES   TO   PKEYENT   OBSCURITY    AND   CONFUSION.  443 


RULE  VII. 

§  239.  Pleadings  should  observe  the  known  and  ancient 
forms  of  expression,  as  contained  in  approved  precedents.  (J)1 

Thus,  so  long  ago  as  in  the  time  of  Bracton,  in  the  count 
on  a  writ  of  right,  there  were  certain  words  of  form,  besides 
those  contained  in  the  writ,  that  were  considered  as  essen- 
tial to  be  inserted.  It  was  necessary  to  allege  "  the  seisin  " 
of  the  ancestor  "  in  his  demesne  as  of  fee,"  and  "  of  right," 
"  by  taking  the  esplees,"  "  in  the  time  of  such  a  king,"  and 
(if  the  seisin  were  alleged  at  a  period  of  civil  commotion) 
"  in  time  of  peace."  (c)  And  all  this  is  equally  necessary  in 
framing  a  count  on  a  writ  of  right  at  the  present  day;  and  no 
paralled  or  synonymous  expressions  will  supply  the  omis- 

(6)  Com.  Dig.,  Abatement  (Q.  7);  Buckley  v.  Rice  Thomas,  Plow.  123;  Dally  v.  King,  1 
H.  Bl.  1;  Slade  v.  Dowland,  2  Bos.  &  Pul.  570;  Dowland  v.  Slade,  5  East,  272;  King  v. 
Fraser,  6  East,  351;  Dyster  v.  Battye,  3  Barn.  &  Aid.  448;  Per  Abbott,  0.  J.,  Wright  v. 
Clements,  id.  507. 

(c)  Bract  37  3  a,  b. 


*It  is  nowhere  held  that  estab- 
lished forms  of  expression  MUST  be 
used,  but  only  that  it  is  better  to 
use  them.  Miller  v.  Blow,  69  III  304; 
Cook  v.  Warner,  88  N.  Y.  37.  The 
case  in  which  is  found  the  oft-quoted 
doctrine  of  Judge  Kent:  "I  enter- 
tain a  decided  opinion  that  the  es- 
tablished principles  of  pleading 
.  .  .  ought  to  be  very  cautiously 
touched  by  the  hand  of  innovation," 
Bayard  v.  Malcolm,  1  Johns.  453-471 
(1806),  quoted  in  another  place,  fur- 
nishes a  good  illustration  of  the  an- 
cient strictness  as  to  forms  of  expres- 
sion. The  case  was  reversed  in  the 
court  of  errors.  Bayard  v.  Malcolm, 
2  Johns.  550.  The  chancellor  said 
that  it  was  a  maxim  that "  no  fiction 
shall  work  an  injury  "  (3  Black.  Com. 
*43),  and  it  was  held  that  it  was  not 
necessary  to  use  "  the  ancient  form 
of  expression,"  as  ordinarily  used  in 
alleging  a  scienter,  but  that  any 
equivalent  language  was  sufficient, 
especially  after  verdict;  and  such 
has  been  the  trend  of  modern  au- 


thority everywhere,  as  we  have  seen 
in  many  instances. 

See  a  valuable  case  in  the  notes. 
Beebe  v.  Knapp,  28  Mich.  53;  also 
Libby,  McN.  &  L.  v.  Sherman,  146 
III  540;  Pomeroy,  Code  Rem.  (3d  ed.), 
§  108.  p.  137. 

In  1855,  in  an  action  under  the 
code,  Denio,  J.,  said  that  a  complaint 
should  contain  the  substance  of  dec- 
laration under  the  former  system, 
holding  that  if  the  averment  can  be 
gathered  from  the  language  it  is 
sufficient;  but  "a  concise  averment 
in  the  terms  mentioned  in  the  books 
would  have  been  better  and  more  in 
accordance  with  the  spirit  of  the 
code."  Zabriskie  v.  Smith,  13  N.  Y. 
330. 

Another  judge  in  a  code  state  says : 
"The  former  precedents  and  rules 
and  adjudications  may  now  be  re- 
sorted to  as  authority,  except  so  far 
as  they  relate  to  the  distinction  be- 
tween different  forms  of  actions  or 
to  merely  formal  or  technical  allega- 
tions." Hill  v.  Barrett,  14  B.  Mon.  83. 


444  KULES   TO   PEEVENT   OBSCUKITY   AND    CONFUSION.       [§  240. 

sion.  (d)  So,  too,  the  general  issues  are  examples  of  forms  of 
expression  fixed  by  ancient  usage  from  which  it  is  improper 
to  depart.  And  another  illustration  of  this  rule  occurs  in 
the  following  modern  case :  To  an  action  on  the  case  the  de- 
fendants pleaded  the  statute  of  limitations,  viz.,  that  they  were 
not  guilty  within  six  years,  etc.  The  court  decided  upon  spe- 
cial demurrer  that  this  form  of  pleading  was  bad,  upon  the 
ground  that  "  from  the  passing  of  the  statute  to  the  present 
case  the  invariable  form  of  pleading  the  statute  to  an  action 
on  the  case  for  a  wrong  has  been  to  allege  that  the  cause  of 
action  did  not  accrue  within  six  years"  etc.,  and  that  it  was 
important  to  the  administration  of  justice  that  the  usual  and 
established  forms  of  pleading  should  be  observed."  (e) 

It  may  be  remarked,  however,  with  respect  to  this  rule, 
that  the  allegations  to  which  it  relates  are  of  course  only 
those  of  frequent  and  ordinary  recurrence,  and  that  even  as 
to  these  it  is  rather  of  uncertain  application,  as  it  must  be 
often  doubtful  whether  a  given  form  of  expression  has  been 
so  fixed  by  the  course  of  precedent  as  to  admit  of  no  varia- 
tion.^) 

Another  rule,  connected  in  some  measure  with  the  last  and 
apparently  referable  to  the  same  object,  is  the  following : 

RULE  VIIL 

§  340.  Pleadings  should  have  their  proper  formal  com- 
mencements and  conclusions.^) — 

This  rule  refers  to  certain  formula  occurring  at  the  com- 
mencement of  pleadings  subsequent  to  the  declaration  and  to 
others  occurring  at  the  conclusion. 

A  formula  of  the  latter  kind,  inasmuch  as  it  prays  the  judg- 
ment of  the  court  for  the  party  pleading,  is  often  denomi- 
nated the  prayer  of  judgment,  and  occurs  (it  is  to  be  observed) 
in  all  pleadings  that  do  not  tender  issue,  but  in  those  only. 

(d)  Blade  v.  Dowland,  2  Boa.  &  Pul.  570;  Dally  v.  King,  1  H.  BL  1;  Dowland  v.  Blade,  • 
East,  872. 

(«)  Dyster  v.  Hattye,  8  Bam.  &  Aid.  448. 

(/)  See  Appendix,  note  (69). 

(fir)  Co.  Litt.  303  b;  Com.  Dig.,  Pleader  (E.  27),  (E.  28),  (E.  82),  (E.  83),  (F.  4),  (F.  6),  (O.  1); 
Com.  Dig.,  Abatement  (L  12);  2  Saund.  210;  Per  Holt,  a  J.,  Bowyer  v.  Cook.  5  Mod.  144. 


§  240.]      RULES   TO   PREVENT   OBSCURITY   AND    CONFUSION.  445 

A  plea  to  the  jurisdiction  has  usually  no  commencement  of 
the  kind  in  question.  (A)  Its  conclusion  is  as  follows:1 

—  the  said  C.  D.  prays  judgment-  if  the  court  of  our  lord  the 
king  here  will  or  ought  to  have  farther  cognizance  of  the 
plea  (i)  aforesaid. 

Or  (in  some  cases)  thus: 

—  the  said  C.  D.  prays  judgment  if  he  ought  to  be  compelled 
to  answer  to  the  said  plea  here  in  court.  (&) 

A  plea,  in  suspension  seems  also  to  be  in  general  pleaded 
without  a  formal  commencement.  (I)  Its  conclusion  (in  the  case 
of  a  plea  of  non-age)  is  thus : 2 

—  the  said  C.  D.  prays  that  the  parol  may  demur  [or,  that  the 
said  plea  may  stay  and  be  respited]  until  the  full  age  of  him, 
the  said  C.  D.,  etc.  (ra) 

A  plea  in  abatement  is  also  usually  pleaded  without  a  formal 
commencement  within  the  meaning  of  this  rule,  (n)    The  con- 
clusion is  thus: 
In  case  of  plea  to  the  writ  or  bill, — 

—  prays  judgment  of  the  said  writ  and  declaration  [or,  bill], 
and  that  the  same  may  be  quashed,  (o) 

In  case  of  plea  to  the  person, — 

—  prays  judgment  if  the  said  A.  B.  ought  to  be  answered  to 
his  said  declaration  [or,  bill],  (p) 

(h)  1  Chitty,  450.    But  sometimes  it  has  such  commencement.    See  Ibid, 
(f)  1  Went  49;  3  Bl.  Com.  303;  Powers  v.  Cook,  Ld.  Raym.  63. 

(fc)  1  Went.  41,  49;  Bac.  Ab.,  Pleas,  etc.  (E.)2;  Per  Holt,  C.  J.,  Bowyer  v.  Cook,  5  Mod.  146; 
Powers  v.  Cook,  Ld.  Raym.  63. 

(I)  2  Chitty,  472;  Plosket  v.  Beeby,  4  East,  485. 

(TO)  Ibid. ;  1  Went  43.    As  for  the  form  in  other  pleas  in  suspension,  see  Lib.  Plac.  9,  10; 

1  Went.  15;  1  Saund.  210,  n.  1;  John  Trollop's  Case,  8  Rep.  69;  Reg.  Plac.  180;  Onslow  v. 
Smith,  2  Bos.  &  Pul.  384;  1  Chitty,  450. 

(n)  2  Saund.  209  a,  n.  1;  1  Arch.  305.  (Query?  See  the  precedents,  2  Chitty,  tit.  Pleas  in 
Abatement;  1  Went.,  tit.  Abatement;  1  Bos.  &  Pul.  60.)  But  it  &  matter  apparent  on  the 
foe?,  of  the  writ  be  pleaded  (a  thing  which  does  not  occur  in  modern  practice,  vide  supra, 
p.  183),  there  should  be  a  commencement.  See  this  matter  explained,  Saund.  and  Arch., 
Ibid. 

(o)  Powers  v.  Cook,  Ld.  Ray.  63;  2  Saund.  209  a,  n.  1;  Com.  Dig.,  Abatement  (L  12); 

2  Chitty,  414.    Yet,  in  some  instances,  it  seems  it  may  be  si  curia  cognoscere  velit.    Chat- 
land  v.  Thornly,  12  East,  544;  2  Chitty,  411.    In  proceedings  by  bill  it  seems  that  it  is  in- 
formal to  pray  judgment  of  the  declaration  or  of  the  bill  and  declaration.    1  Chitty  Rep. 
706. 

(p)  Co.  Litt.  128  a;  Com.  Dig.,  Abatement  a.  12);  1  Went.  58,  62.    See  Appendix,  note  (70). 

1  Drake  v.  Drake,  83  111.  526;  Liv-  3  This  is   matter  of  substance  in 
ingston  v.  Jefferson,  1  Brock.  203.  such  pleas.     Waterman  v.  Holmes, 
C/.  Safford  v.  Sangamon  Ins.  Co.,  88  62  Vt  463:  Ross  v.  Nesbit,  2  Gilm. 
111.  296.  252;  C.  &  N.  W.  Ry.  Co.  v.  Jenkins, 

2  Gibson  v.  Bourland,  13  111.  App.  103  111.  558;  Pitts'  Sons'  Mfg.  Co.  v. 
352;  Kenyon  v. Sutherland, 3  Gilm.  99.  Com.  Nat.  Bank,  121  111.  528. 

29 


446  ETJLES    TO   PREVENT   OBSCURITY   AND   CONFUSION.       [§  240. 

A  plea  in  lar  has  this  commencement: 

—  says  that  the  said  A.  B.  ought  not  to  have  or  maintain  his 
aforesaid  action  against  him,  the  said  C.  D.,  because  he  says, 
etc. 

This  formula  is  commonly  called  actio  non. 
The  conclusion  is, — 

—  prays  judgment  if  the  said  A.  B.  ought  to  have  or  maintain 
his  aforesaid  action  against  him. 

A  replication  to  a  plea  to  the  jurisdiction  has  this  commence- 
ment: 

—  says  that,  notwithstanding  anything  by  the  said  C.  D.  above 
alleged,  the  court  of  our  lord  the  king  here  ought  not  to  be 
precluded  from  having  farther  cognizance  of  the  plea  afore- 
said, because  he  says,  etc.  (^) 

Or  this, — 

—  says  that  the  said  C.  D.  ought  to  answer  to  the  said  plea 
here  in  court,  because  he  says,  etc.  (r) 

And  this  conclusion: 

—  wherefore  he  prays  judgment,  and  that  the  court  here  may 
take  cognizance  of  the  plea  aforesaid,  and  that  the  said  C.  D. 
may  answer  over,  etc.  (5) 

A  replication  to  a  plea  in  suspension  (in  the  case  of  a  plea 
of  non-age)  has  this  commencement: 

—  says  that,  notwithstanding  anything  by  the  said  C.  D.  above 
alleged,  the  parol  ought  not  farther  to  demur  [or,  the  said 
plea  ought  not  farther  to  stay  or  be  respited],  because  he  says, 
etc.  (t) 

And,  if  there  should  be  any  case  in  which  such  replication 
does  not  tender  issue,  it  should  probably  have  this  conclusion: 

—  wherefore  he  prays  judgment  if  the  parol  ought  farther  to 
demur  [or,  if  the  said  plea  ought  farther  to  stay  or  be  respited], 
and  that  the  said  C.  D.  may  answer  over. 

A  replication  to  a  plea  in  abatement  has  this  commencement: 
Where  the  plea  was  to  the  writ  or  bill, — 

—  says  that  his  said  writ  and  declaration  [or,  bill],  by  reason 
of  anything  in  the  said  plea  alleged,  ought  not  to  be  quashed ; 
because  he  says,  etc.  (u) 

Where  the  plea  was  to  the  person, — 

—  says  that  notwithstanding  anything  in  the  said  plea  al- 

{«)  1  Went.  60;  Lib.  Plac.  848. 

<r)  1  Went.  89. 

{«)  Lib.  Plac.  348;  1  Went.  89. 

(0  Liber.  Intrat. 

(u)  2  Chitty,  589;  1  Arch.  309;  Bast  Ent.  190  a. 


§  240.]       RULES   TO   PREVENT   OBSCURITY   AND   CONFUSION1.  447 

leged,  he,  the  said  A.  B.,  ou^ht  to  be  answered  to  his  said 
declaration  [or,  bill] ;  because  ne  says,  etc.  (a?) 

The  conclusion,  in  most  cases,  is  thus: 
Where  the  plea  was  to  the  writ  or  Mil, — 

—  wherefore  he  prays  judgment,  and  that  the  said  writ  and 
declaration  [or,  bill]  may  be  adjudged  good  and  that  the  said 
O.  D.  may  answer  over,  etc. 

Where  the  plea  was  to  the  person, — 

—  wherefore  he  prays  judgment,  and  that  the  said  0.  D.  may 
answer  over,  etc.  (y) 

A  replication  to  a  plea  in  bar  has  this  commencement: 

—  says  that  by  reason  of  anything  in  the  said  plea  alleged, 
he  ought  not  to  be  barred  from  having  and  maintaining  his 
aforesaid  action  against  him,  the  said  C.  D. ;  because  he  says, 
etc. 

This  formula  is  commonly  called  precludi  non. 
The  conclusion  is  thus : 
In  debt, — 

—  wherefore  he  prays  judgment,  and  his  debt  aforesaid,  to- 

§  ether  with  his  damages  by  him  sustained,  by  reason  of  the 
etention  thereof,  to  be  adjudged  to  him. 
In  covenant, — 

—  wherefore  he  prays  judgment,  and  his  damages  by  him 
sustained,  by  reason  of  the  said  breach  of  covenant,  to  be  ad- 
judged to  him. 

In  trespass, — 

-r-  wherefore  he  prays  judgment,  and  his  damages  by  him  sus- 
tained, by  reason  of  the  committing  of  the  said  trespasses,  to 
be  adjudged  to  him. 

In  trespass  on  the  case  —  in  assumpsit, — 

—  wherefore  he  prays  judgment,  and  his  damages  by  him  sus- 
tained, by  reason  of  the  not  performing  of  the  said  several 
promises  and  undertakings,  to  be  adjudged  to  him. 

In  trespass  on  the  case  —  in  general, — 

—  wherefore  he  pra}rs  judgment,  and  his  damages  by  him  sus- 
tained, by  reason  of  the  committing  of  the  said  several  griev- 
ances, to  be  adjudged  to  him  . 

And  so,  in  all  other  actions,  the  replication  concludes  with  a 
prayer  of  judgment  for  damages,  or  other  appropriate  redress, 
according  to  the  nature  of  the  action,  (z) 

(x)  \  Went.  42;  1  Arch.  309. 

(y)  1  Went.  43,  45,  54 ;  1  Arch.  309 ;  East.  Ent.  126  a.  As  to  the  cases  in  which  the  conclusion 
should  be  different,  see  2  Saund.  211,  note  3;  Medina  v.  Stoughton,  Lord  Raj.  594;  Co.  Ent. 
ICOa;  LaL  Ent.  123;  Lab.  Plac.  i. 

(?)  See  the  forms,  2  Chitty.  615,  638,  030,  641;  1  Arch.  410,  442. 


448  RULES   TO   PREVENT   OBSCURITY   AND    CONFUSION.       [§  241. 

"With  respect  to  pleading  subsequent  to  the  replication,  it 
will  be  sufficient  to  observe,  in  general,  that  those  on  the  part 
of  the  defendant  follow  the  same  form  of  commencement  and 
conclusion  as  the  plea;  those  on  the  part  of  the  plaintiff  the 
same  as  the  replication. 

§  241.  These  forms  are  subject  to  the  following  varia- 
tions.—  First,  with  respect  io  pleas  in  abatement.  Matters  of 
abatement,  in  general,  only  render  the  writ  abatable  upon 
plea;  but  there  are  others,  such  as  the  death  of  the  plaintiff 
or  defendant  before  verdict  or  judgment  by  default,  that  are 
said  to  abate  it  de  facto;  that  is,  by  their  own  immediate  effect, 
and  before  plea;  the  only  use  of  the  plea  in  such  cases  being 
to  give  the  court  notice  of  the  fact,  (a)  Where  the  writ  is 
merely  abatable,  the  forms  of  conclusion  above  given  are  to 
be  observed;  but  when  abated  de  facto,  the  conclusion  must 
pray  "  whether  the  court  will  farther  proceed ; "  for  the  writ 
being  already  and  ipso  facto  abated,  it  would  be  improper  to 
pray  "  that  it  may  be  quashed."  (b) 

Again,  when  a  plea  in  bar  is  pleaded  puis  darreign  continu- 
ance, (c)  it  has,  instead  of  the  ordinary  actio  non,  a  commence- 
ment  and  conclusion  of  actio  non  ulterius,  as  in  the  example 
supra,  §  108.1 

So  if  a  plea  in  bar  be  found  on  any  matter  arising  after  th& 
commencement  of  the  action,  though  it  be  not  pleaded  after  a 
previous  plea,  and  therefore  not  puis  darreign  continuance, 
yet  it  pursues  in  that  case  also,  in  its  commencement  and  con- 
clusion, the  same  form  of  actio  non  ulterius  instead  of  actio 
non  generally,  (d) 

Again,  all  pleadings  by  way  of  estoppel  have  a  commence- 
ment and  conclusion  peculiar  to  themselves.  A  plea  in  es- 
topel  has  the  following  commencement:  "  Says  that  the  said 
A.  B.  ought  not  to  be  admitted  to  say  "  (stating  the  allegation 
to  which  the  estoppel  relates) ;  and  the  following  conclusion: 
"Wherefore  he  prays  judgment  if  the  said  A.  B.  ought  to  be 

(a)  Bac.  Ab.,  Abatement  (K.),  (G.),  (F.);  Com.  Dig.,  Abatement  (E.  17);  2  SaundL  210, 
n.1. 

(6)  Com.  Dig.,  Abatement  (H.  33),  (L  12);  2  Saund.  210,  n.  1;  Hallowes  T.  Lucy,  8  Lev. 
120. 

(c)  As  to  this  kind  of  plea,  see  supra,  p.  198. 

(d)  Le  Bret  v.  Papillon,  4  East,  502;  2  Chitty,  421. 

*  Gibson  v.  Bourland,  13  HI.  App.  852, 


§  241.]       RULES   TO   PREVENT    OBSCURITY    AND   CONFUSION.  449 

admitted,  against  his  own  acknowledgment,  by  his  deed  afore- 
said "  (or  otherwise  according  to  the  matter  of  the  estoppel), 
"  to  say  that "  (stating  the  allegation  to  which  the  estoppel 
relates),  (e)  A  replication  by  way  of  estoppel,  to  a  plea  either 
in  abatement  or  bar,  has  this  commencement:  "  Says  that  the 
said  C.  D.  ought  not  to  be  admitted  to  plead  the  said  plea  by 
him  above  pleaded,  because  he  says,  etc."  (/)  Its  conclusion 
in  case  of  a  plea  in  abatement  is  as  follows :  "  Wherefore  he 
prays  judgment  if  the  said  C.  D.  ought  to  be  admitted  to  his 
said  plea,  contrary  to  his  own  acknowledgment,  etc.,  and  that 
he  may  answer  over,  etc. ; "  (g)  in  case  of  a  plea  in  bar,  "  where- 
fore he  prays  judgment  if  the  said  C.  D.  ought  to  be  ad- 
mitted, contrary  to  his  own  acknowledgment,  etc.,  to  plead 
that "  (stating  the  allegation  to  which  the  estoppel  relates).  (A) 
Rejoinders  and  subsequent  pleadings  follow  the  forms  of  pleas 
and  replications  respectively.  (*) 

Again,  if  any  pleading  be  intended  to  apply  to  part  only  of 
the  matter  adversely  alleged,  it  must  be  qualified  accordingly 
in  its  commencement  and  conclusion.  (&) 

Lastly,  when,  in  an  action  of  debt  on  bond,  some  matter  is 
pleaded  in  bar  tending  to  show  that  the  plaintiff  never  had 
any  right  of  action,  and  not  matter  in  discharge  of  a  right 
once  existing  (as,  for  example,  when  it  is  pleaded  that  the  bond 
was  void  for  some  illegality),  the  plea  in  that  case,  instead  of 
actio  non,  has  the  following  commencement,  commonly  called 
onerari  non:  "  says  that  he  ought  not  to  be  charged  with  the 
said  debt  by  virtue  of  the  said  supposed  writing  obligatory, 
because  he  says,"  etc.  And  the  conclusion  is  thus :  "  Where- 
fore he  prays  judgment  if  he  ought  to  be  charged  with  the 
said  debt,  by  virtue  of  the  said  supposed  writing  obligatory."  (I) 

While  pleadings  have  thus,  in  general,  their  formal  com- 
mencements and  conclusions,  (m)  there  is  an  exception  (as 
already  noticed)  in  the  case  of  all  such  pleadings  as  tender 
issue.  These,  instead  of  the  conclusion  with  sprayer  ofjudg- 

(e)  1  Arch.  202;  Veale  v.  Warner,  1  Saund.  325. 
(/)  2  Chitty,  590,  592. 

(g)  Ibid.  590. 
(fc)  2  Chitty,  592. 

(f)  Veale  v.  Warner,  1  Saund.  325. 

(fc)  Weeks  v.  Peach,  1  Salk.  179.    See  the  example  tupra,  p.  365. 
(I)  Com.  Dig.,  Pleader  (E.  27);  Brown  y.  Cornish,  Salk.  516. 
(m)  See  Appendix,  note  (71). 


450  RULES   TO   PREVENT   OBSCURITY    AND   CONFUSION.       [§  242. 

ment  as  in  the  above  forms,  conclude  (in  the  case  of  the  trial 
by  jury)  to  the  country;  or  (if  a  different  mode  of  trial  be 
proposed)  with  other  appropriate  formulae,  as  explained  under 
the  second  rule  of  the  first  section,  (n)  Pleadings  which 
tender  issue  have,  however,  the  formal  commencements,  with 
the  exception  of  the  general  issues,  which  have  neither  formal 
commencement  nor  conclusion,  in  the  sense  to  which  the  pres- 
ent rule  refers. 

§  242.  In  general,  a  defect  or  impropriety  in  the  com- 
mencement or  conclusion  of  a  pleading  is  ground  for 
demurrer,  (o) — But  if  the  commencement  pray  the  proper 
judgment,  it  seems  to  be  sufficient,  though  judgment  be 
prayed  in  an  improper  form  in  the  conclusion,  (p)  And  the 
converse  case,  as  to  a  right  prayer  in  the  conclusion,  with  an 
improper  commencement,  has  been  decided  the  same  way.  (q) 
So,  if  judgment  be  simply  prayed,  without  specifying  what 
judgment,  it  is  said  to  be  sufficient,  and  it  is  laid  down  that 
the  court  will,  in  that  case,  ex  officio,  award  the  proper  legal 
consequence,  (r)  It  seems,  however,  that  these  relaxations 
from  the  rule  do  not  apply  to  pleas  in  abatement;  the  court 
requiring  greater  strictness  in  these  pleas  with  a  view  to  dis- 
courage their  use.  (s) 

It  will  be  observed  that  the  commencement  and  conclusion 
of  a  plea  are  in  such  form  as  to  indicate  the  view  in  which  it 
is  pleaded,  and  to  mark  its  object  and  tendency  as  being 
either  to  the  jurisdiction,  in  suspension,  in  abatement  or  in 
bar.  It  is  therefore  held  that  the  class  and  character  of  a 
plea  depend  upon  these,  its  formular  parts,  which  is  ordinarily 
expressed  by  the  maxim,  conclusio  facit  placitum.  (t)1  Ac- 
cordingly, if  it  commence  and  conclude  as  in  bar,  but  contain 
matter  sufficient  only  to  abate  the  writ,  it  is  a  bad  plea  in 

(n)  Supra,  p.  333. 

(o)  Nowlan  v.  Geddes,  1  East,  634;  Wilson  v.  Kemp,  2  M.  &  S.  549;  Le  Bret  v.  Papillon, 
4  East,  502;  Com.  Dig.,  Pleader  (E-27);  Weeks  v.  Peach,  1  Salk.  179;  Powell  v.  Fullerton, 
2  Bos.  &  Pul.  420. 

(p)  Rep.  Temp.  Hard.  845. 

(5)  Fort.  335. 

(r)  1  Chitty,  445,  539;  Le  Bret  v.  Papillon,  4  East,  502;  1  Saund,  97  n.  1. 

(s)  King  v.  Shakspeare,  10  East,  83:  Attwood  v.  Davis,  1  Barn.  &  Aid.  172.  See  Appen- 
dix, note  (72). 

(t)  Street  v.  Hopkinson,  Rep.  Temp.  Hard.  346. 

i  Pitts'  Sons'  Mfg.  Co.  v.  Com.  Nat  Bank,  121  111.  528. 


§  243.]      RULES    TO    PKEVENT   OBSCURITY   AND   CONFUSION.  451 

bar  and  no  plea  in  abatement,  (u)  And,  on  the  other  hand,  it 
has  been  held  that  if  a  plea  commence  and  conclude  as  in 
abatement  and  show  matter  in  bar,  it  is  a  plea  in  abatement 
and  not  in  bar.  (a?) 

As  the  commencement  and  conclusion  have  this  effect  of  de- 
fining the  character  of  the  plea,  so  they  have  the  same  tend- 
ency in  the  replication  and  subsequent  pleadings.  For  example, 
they  serve  to  show  whether  the  pleading  be  intended  as  in 
confession  and  avoidance  or  estoppel ;  and  whether  intended 
to  be  pleaded  to  the  whole  or  to  part.  From  these  considera- 
tions it  is  apparent  that  they  are  forms  which,  on  the  whole, 
materially  tend  to  clearness  and  precision  in  pleading;  and 
they  have  for  that  reason  been  considered  under  this  section. 

In  connection  with  the  rule  last  mentioned,  and  in  a  view 
to  the  same  objects  of  clearness  and  precision,  is  established 


the  following  rule : 


RULE  IX. 


§  243.  A  pleading  which  is  bad  in  part  is  'bad  alto- 
gether, (y)  l  — 

The  meaning  of  this  rule  is  that  if  in  any  material  part  of 
a  pleading,  or  in  reference  to  any  of  the  material  things  which 
it  undertakes  to  answer,  the  pleading  be  bad,  though  in  other 
respects  it  be  free  from  objection,  the  whole  of  it  is  open  to 
demurrer ;  so  that  if  the  objection  be  good  the  whole  pleading 
in  question  is  overruled  and  judgment  given  accordingly. 
Thus,  if  in  a  declaration  of  assumpsit  two  different  promises 
be  alleged  in  two  different  counts,  and  the  defendant  plead  in 
bar  to  both  counts,  conjointly,  the  statute  of  limitations,  viz., 
that  he  did  not  promise  within  six  years,  and  the  plea  be  an 
insufficient  answer  as  to  one  of  the  counts,  but  a  good  bar  as 
to  the  other,  the  whole  plea  is  bad  and  neither  promise  is 
sufficiently  answered,  (z) 

(u)  1  East,  634;  Wallis  v.  Savil,  1  Lutw.  41;  2  Saund.  209  d,  n.  L  Per  Littleton,  J.,  86 
Hen.  6, 18. 

(x)  Godson  v.  Good,  6  Taunt.  587.    See  Appendix,  note  (73). 

(y)  Com.  Dig.,  Pleader  (E.  86),  (F.  25);  1  Saund.  28,  n.  2;  Webb  v.  Martin,  1  Lev.  48;  Rowe 
v.  Tutte,  Willes,  14;  Drueman  v.  Hurst,  1  T.  R.  40. 

(z)  Webb  v.  Martin,  1  Lev.  48. 

1  Rison  v.  Farr,  24  Ark  161,  87  v.  Trann,  27  Ala.  562,  62  Am.  Dec. 
Am.  Dec.  52;  Ferrall  v.  Bradford,  2  778;  Bradley  v.  Powers,  7  Cow.  330; 
Fla.  508,  50  Am.  Dec.  293 ;  Wittick  Marsteller  v.  McLean,  7  Cranch,  159. 


4:52  RULES   TO    PREVENT    OBSCURITY   AND   CONFUSION.       [§  243. 

This  rule  seems  to  result  from  that  which  requires  each 
pleading  to  have  its  proper  formal  commencement  and  con- 
clusion. For,  by  those  forms  (it  will  be  observed),  the  matter 
which  any  pleading  contains  is  offered  as  an  entire  answer  to 
the  whole  of  that  which  last  preceded.  Thus,  in  the  example 
above  given,  the  defendant  would  allege,  in  the  commencement 
of  his  plea,  that  the  plaintiff  "ought  not  to  have  or  maintain 
his  action"  for  the  reason  therein  assigned ;  and  therefore  he 
would  pray  judgment,  etc.,  as  to  the  whole  action  in  the  con- 
clusion. If,  therefore,  the  amswer  be  insufficient  as  to  one 
count,  it  cannot  avail  as  to  the  other;  because,  if  taken  as  a 
plea  to  the  latter  only,  the  commencement  and  conclusion  would 
be  wrong.  In  this  example  there  was  but  one  plea,  and  con- 
sequently but  one  commencement  and  conclusion;  but  if  the 
defendant  had  pleaded  the  statute  in  bar  to  the  first  count  sep- 
arately, and  then  pleaded  it  to  the  second  count,  with  a  new 
commencement  and  conclusion,  thus  making  two  pleas  instead 
of  one,  the  invalidity  of  one  of  these  pleas  could  not  have 
vitiated  the  other. 

As  the  declaration  contains  no  commencement  or  conclusion 
of  the  kind  to  which  the  last  rule  relates,  so,  on  the  other 
hand,  the  declaration  does  not  fall  within  the  rule  now  in  ques- 
tion. Therefore,  if  a  declaration  be  good  in  part,  though  bad 
as  to  another  part  relating  to  a  distinct  demand  divisible  from 
the  rest,  and  the  defendant  demur  to  the  whole,  instead  of 
confining  his  demurrer  to  the  faulty  part  only,  the  court  will 
give  judgment  for  the  plaintiff,  (a) 

(a)  1  Saund.  286,  note  9;  Bac.  Ab.,  Pleas,  etc.  (B.)  6;  Cutforthay  v.  Taylor,  Raym.  895; 
Judin  y.  Samuel,  1  New  Rep.  43;  Beubridge  v.  Day,  1  Salk.  218;  Powdick  T.  Lyon,  11  East, 
ML 


CHAPTER  XII. 

OF  RULES  WHICH  TEND  TO  PREVENT  PROLIXITY  AND  DELAY 

IN  PLEADING. 

RULE  L 

§  244.  There  must  be  no  departure  in  pleading.  (5)1  — 

A  departure  takes  place  when,  in  any  pleading,  the  party  de- 
serts the  ground  [theory  of  his  case]  that  he  took  in  his  last 
antecedent  pleading  and  resorts  to  another,  (c) 2 

A  departure  obviously  can  never  take  place  till  the  replica- 
tion. 

[This  last  statement,  while  true  if  applied  to  a  single  cause 
of  action,  is  misleading  because  it  excludes  the  idea  of  another 
mode  in  which  a  departure  may  take  place,  viz. : 

Departure  in  declaring. —  A  departure  on  the  part  of  the 
plaintiff  may  take  place  by  attempting  to  amend  hisuleclara- 
tion  or  complaint  and  in  so  doing  introducing  a  new  cause  of 
action;  this  is  not,  properly  speaking,  an  amendment,  but  a 
complete  change;  and  while  it  is  called  amendment  and  treated 
as  a  departure,  both  terms  are  almost  misnomers.3  A  change 

(6)  Co.  Litt.  304  a;  2  Saund.  84;  Dudlow  v.  Watchorn,  16  East,  39;  Tolputt  v.  Wells,  1  M. 

6  S.  395;  and  see  the  numerous  authorities  collected  in  Com.  Dig.,  Pleader  (F.  70,  (F.  11); 
Bac.  Ab.,  Pleas,  etc.  (L.);  Vin.  Ab.,  tit.  Departure;  1  Arch.  247,  253.    See  Appendix,  note  (74). 

(c)  Co.  Litt.  304  a;  2  Saund.  84,  n.  1. 

1  A  departure  in  a  replication  is  is  no  departure.    See,  also,  Brine  v. 
when  it  does  not  support  the  declara-  Gt.  West.  Ry.  Co.,  2  Best  &  Smith, 
tion.     Libby  v.  Brown,  4  Pick.   137.  402,  Ames'  Cases,  224. 
As  sustaining  the  rule,  see  Beard  v.  2  Salt  Lake  City  Nat.  Bank  v.  Hen- 
Hand,  88  Ind.  183;  Munrov.  Alaire,  2  drickson,  40  N.  J.  L.  52;  Wilson  v. 
Caines,  320;   Prince  v.    Brunatte,  1  Johnson  (N.  J.),  29  Atl.  Rep.  419. 
Bing.   N.   C.  435.    Tindal,  C.  J.,  in  8  The  rule  is  well  settled  that  mat- 
Smith  v.  Nicolls,  5  Bing.  N.  C.  208.  ter  which  constitutes  a  new  bill  in 

7  Scott,  147,  thus  lays  down  a  test  of  equity,  or  matter  inconsistent  with 
departure:  "That  which  is  a  depart-  or  repugnant  to  the  substantive  at- 
tire in  pleading  is  a  variance  in  evi-  legations  of  the   original  bill,  can- 
dence;  and  if  the  evidence  in  sup-  not  be   introduced  by  amendment, 
port  of  the  replication  would  sustain  Strange  v.  Judge,  108  Mich.  229. 
the  allegation  in  the  declaration  there 


454:  EULES   TO   PREVENT   PROLIXITY   AND   DELAY.  [§  245. 

in  the  theory  and  ground  of  his  suit,  even  if  it  is  done  by  way 
of  a  new  count,  is  regarded  as  a  departure.1  It  will  be  ob- 
served that  a  departure  on  the  part  of  the  complaining  party 
amounts  to  changing  his  cause  of  action.] 

Of  departure  in  the  replication  the  following  is  an  example: 
In  assumpsit  the  plaintiffs,  as  executors,  declared  on  several 
promises  alleged  to  have  been  made  to  the  testator  in  his  life- 
time. The  defendant  pleaded  that  she  did  not  promise  within 
six  years  before  the  obtaining  of  the  original  writ  of  the 
plaintiffs.  The  plaintiffs  replied  that,  within  six  years  before 
the  obtaining  of  the  original  writ,  the  letters  testamentary 
were  granted  to  them,  whereby  the  action  accrued  to  them,  the 
said  plaintiffs,  within  six  years.  The  court  held  this  to  be  a 
departure;  as  in  the  declaration  they  had  laid  promises  to 
the  testator^  but  in  the  replication  alleged  the  right  of  action 
to  accrue  to  themselves  as  executors,  (d)  They  ought  to  have 
laid  promises  to  themselves,  as  executors,  in  the  declaration,  if 
they  meant  to  put  their  action  on  this  ground.2 

§  245.  Departure  in  the  rejoinder. — But  a  departure  does 
not  occur  so  frequently  in  the  replication  as  in  the  rejoinder? 

In  debt  on  a  bond  conditioned  to  perform  an  award  so  that 
the  same  were  delivered  to  the  defendant  by  a  certain  time, 
the  defendant  pleaded  that  the  arbitrators  did  not  make  any 
award.  The  plaintiff  replied  that  the  arbitrators  did  make 
an  award  to  such  an  effect,  and  that  the  same  was  tendered 
by  the  proper  time.  The  defendant  rejoined  that  the  award 
was  not  so  tendered.  On  demurrer  it  was  objected  that  the 
rejoinder  was  a  departure  from  the  plea  in  bar;  "for,  in  the 
plea  in  bar,  the  defendant  says  that  the  arbitrators  made  no 
award,  and  now,  in  his  rejoinder,  he  has  implicitly  confessed 
that  the  arbitrators  have  made  an  award,  but  says  that  it  was 

(d)  Hickman  v.  Walker,  Willes,  27. 

1  Union  Pac.  Ry.  Co.  v.  Wyler,  158  after  which  the  plaintiff  sought  to 
U.  S.  285.  put  the  plea  aside  by  replying  a  tort. 

2  In  Bartlett  v.   "Wells,   1  Best  &  This  was  held  a  departure,  the  nature 
Smith,  886,  Ames'  Cases,  222,    the  of  the  cause  of  action  being  changed, 
declaration  was  on  a  contract  for  8  See  Sterns  v.  Patterson.  14  Johns, 
money  payable  for  goods  supplied  to  132;  Burr  v.  Baldwin,  2  Wend.  580; 
the  defendant,  which  was  answered,  Button  v.  Holden,  4  id.  643. 


§  245.]  KULES    TO   PKEVENT   PROLIXITY   AND   DELAY.  455 

not  tendered  according  to  the  condition,  which  is  a  plain  de- 
parture, for  it  is  one  thing  not  to  make  an  award,  and  another 
thing  not  to  tender  it  when  made.  And  although  both  these 
things  are  necessary,  by  the  condition  of  the  bond,  to  bind 
the  defendant  to  perform  the  award,  yet  the  defendant  ought 
only  to  rely  upon  one  or  the  other  by  itself,"  etc. ;  "  but  if  the 
truth  had  been  that,  although  the  award  was  made,  yet  it  was 
not  tendered  according  to  the  condition,  the  defendant  should 
have  pleaded  so  at  first  in  his  plea,"  etc.  And  the  court  gave 
judgment  accordingly,  (e)1  So  in  debt  on  a  bond  conditioned 
to  keep  the  plaintiffs  harmless  and  indemnified  from  all  suits, 
etc.,  of  one  Thomas  Cook,  the  defendants  pleaded  that  they 
had  kept  the  plaintiffs  harmless,  (/")  etc.  The  plaintiffs  replied 
that  Cook  sued  them,  and  so  the  defendant  had  not  kept  them 
harmless,  etc.  The  defendants  rejoined  that  they  had  not  any 
notice  of  the  damnification.  And  the  court  held,  first,  that  the 
matter  of  the  rejoinder  was  bad,  as  the  plaintiffs  were  not 
bound  to  give  notice;  and  secondly,  that  the  rejoinder  was  a 
departure  from  the  plea  in  bar;  "for  in  the  bar  the  defend- 
ants plead  that  they  have  saved  harmless  the  plaintiffs,  and  in 
the  rejoinder  confess  that  they  have  not  saved  harmless,  but 
they  hacj.  not  notice  of  the  damnification,  which  is  a  plain  de- 
parture." (g)  So  in  debt  on  a  bond -conditioned  to  perform  the 
covenants  in  an  indenture  of  lease,  one  of  which  was  that  the 
lessee,  at  every  felling  of  wood,  would  make  a  fence,  the  de- 
fendant pleaded  that  he  had  not  felled  any  wood,  etc.  The 
plaintiff  replied  that  he  felled  two  acres  of  wood,  but  made  no 
fence.  The  defendant  rejoined  that  he  did  make  a  fence;  this 
was  adjudged  a  departure,  (h) 

[A  departure  may  occur  either  by  changing  the  elemental  facts 
which  constitute  the  cause  of  action  or  defense,  or  changing  the 
legal  basis  of  the  claim.']  These,  it  will  be  observed,  are  cases 
in  which  the  party  deserts  the  ground,  in  point  otfact,  that  he 

(e)  Eoberts  v.  Mariett,  2  Saund.  188. 

(/)  This  plea  was  bad  for  not  showing  hoio  they  had  kept  harmless  (1  Saund.  117,  n.  1), 
supra,  p.  268,  but  the  court  held  the  fault  cured  by  pleading  over.    Vide  supra,  p.  419. 
(g)  Cutler  v.  Southern,  1  Saund.  116. 
(h)  Dyer,  253  b. 

JSee,  also,  Fisher  v.  Pimbley,  11  East,  188,  Ames'  Cases,  215;  Allen  v. 
Watson,  16  Johns.  205. 


456        KULES  TO  PREVENT  PROLIXITY  AND  DELAY.     [§  245. 

had  first  taken.  But  it  is  also  a  departure  if  he  puts  the  same 
facts  on  a  new  ground  in  point  of  law;  as  if  he  relies  on  the 
effect  of  the  common  law  in  his  declaration,  and  on  a  custom, 
in  his  replication;  *  or  on  the  effect  of  the  common  law  in  his 
plea,  and  a  statute  in  his  rejoinder.  Thus,  where  the  plaintiff 
declared  in  covenant  on  an  indenture  of  apprenticeship,  by 
which  the  defendant  was  to  serve  him  for  seven  years,  and  as- 
signed, as  breach  of  covenant,  that  the  defendant  departed 
within  the  seven  years,  and  the  defendant  pleaded  infancy,  to 
which  the  plaintiff  replied  that,  by  the  custom  of  London,  in- 
fants may  bind  themselves  apprentices,  this  was  considered  as 
a  departure,  (i)  Again,  in  trespass,  the  defendant  made  title 
to  the  premises,  pleading  a  demise  for  fifty  years  made  by  the 
college  of  R.  The  plaintiff  replied  that  there  was  another 
prior  lease  of  the  same  premises,  which  had  been  assigned  to 
the  defendant,  and  which  was  unexpired  at  the  time  of  making 
the  said  lease  for  fifty  years;  and  alleged  a  proviso  in  the  act 
of  31  Hen.  8,  ch.  13,  avoiding  all  leases  by  the  colleges  to  which 
that  act  relates,  made  under  such  circumstances  as  the  lease 
last  mentioned.  The  defendant  in  his  rejoinder  pleaded  an- 
other proviso  in  the  statute,  which  allowed  such  leases  to  be 
good  for  twenty-one  years  if  made  to  the  same  person,  etc. ; 
and  that,  by  virtue  thereof,  the  demise  stated  in  his  plea  was 
available  for  twenty-one  years  at  least.  The  judges  held  the 
rejoinder  to  be  a  departure  from  the  plea;  "for,  in  the  bar,  he 
pleads  a  lease  of  fifty  years,  and  in  the  rejoinder  he  concludes 
upon  a  lease  for  twenty-one  years,"  etc.  And  they  observed 
that  "  the  defendant  might  have  shown  the  statute,  and  the 
whole  matter,  at  first."  (&) 

[Not  every  change  in  the  ground  of  complaint  or  defense  will 
constitute  a  departure;  it  must  be  matter  affecting  the  integrity 
of  the  claim  or  defense.]  To  show  more  distinctly  the  nature 
of  a  departure,  it  may  be  useful,  on  the  other  hand,  to  give 

(i)  Mole  v.  Wallis,  1  Lev.  81. 

(fc)  Fulmerston  v.  Steward,  Plowd.  103;  Dyer,  102  b,  S.  0. 

JIn  U.  P.  Ry.  Co.  v.  Wyler,  158  the  original  complaint.    Wilson  v. 

U.  S.  285.  the  change  was  by   an  Johnson,  supra,  brought  in  a  new 

amended  count,  relying  on  a  statu-  ground  of  fact  in  a  replication, 
tory  liability  where  not  relied  on  in, 


§  245.]  RULES   TO   PREVENT   PROLIXITY    AND   DELAY.  457 

some  examples  of  cases  that  have  been  held  not  to  fall  within 
that  objection.1 

In  debt  on  a  bond  conditioned  to  perform  covenants,  one 
of  which  was  that  the  defendant  should  account  for  all  sums 
of  money  that  he  should  receive,  the  defendant  pleaded  per- 
formance. The  plaintiff  replied  that  £26  came  to  his  hands, 
for  which  he  had  not  accounted.  The  defendant  rejoined 
that  he  accounted  modo  sequente,  viz.,  that  certain  malefac- 
tors broke  into  his  counting-house  and  stole  it,  wherewith  he 
acquainted  the  plaintiff.  And  it  was  argued  on  demurrer 
"that  the  rejoinder  is  a  departure;  for  fulfilling  a  covenant 
to  account  cannot  be  intended  but  by  actual  accounting, 
whereas  the  rejoinder  does  not  show  an  account,  but  an  ex- 
cuse for  not  accounting."  But  the  court  held  that  showing 
he  was  robbed  is  giving  an  account,  and  therefore  there  was 
no  departure.  (Z)  So,  in  a  debt  on  a  bond  conditioned  to  in- 
demnify the  plaintiff  from  all  tonnage  of  certain  coals  due  to 
"W.  B.,  the  defendant  pleaded  non  damnificatus;  to  which  the 
plaintiff  replied  that  for  £5  of  tonnage  of  coals  due  to  W.  B. 
his  barge  was  distrained;  and  the  defendant  rejoined  that  no 
tonnage  was  due  to  W.  B.  for  the  coals.  To  this  the  plaintiff 
demurred,  "supposing  the  rejoinder  to  be  a  departure  from 
the  plea;  for  the  defendant  having  pleaded  generally  that 
the  plaintiff  was  not  damnified,  and  the  plaintiff  having  as- 
signed a  breach,  the  matter  of  the  rejoinder  is  only  by  way  of 
excuse,  confessing  and  avoiding  the  breach ;  which  ought  to 
have  been  done  at  first,  and  not  after  a  general  plea  of  indem- 
nity. On  the  other  side  it  was  insisted  that  it  was  not  neces- 
sary for  the  defendant  to  set  out  all  his  case  at  first;  and  it 

(I)  Vere  v.  Smith,  2  Lev.  5;  1  Vent.  121,  S.  C. 

JIn  Swift  &  Co.  v.  Foster,  163  111.  recover  the  same  damage  for  the 
50,  a  change  in  the  character  and  same  injury,  there  is  no  departure, 
act  of  negligence  was  held  no  de-  The  rules  relative  to  variance,  de- 
parture; and  a  similar  change  of  the  parture,  amendment,  duplicity,  etc., 
ground  of  ccrn plaint  was  upheld  in  all  emphasize  the  importance  of  rec- 
Strange  v.  Judge,  108  Mich.  229.  In  ognizing  the  distinction  between  the 
this  case  the  rule  is  held  to  be,  that  causes  of  action  and  the  formal  lan- 
so  long  as  the  plaintiff  adheres  to  the  guage  of  alleging  them, 
original  cause  of  action,  seeking  to 


458 


RULES  TO  PREVENT  PROLIXITY  AND  DELAY. 


[§  246. 


suffices  that  his  bar  is  supported  and  strengthened  by  his  re- 
joinder. And  of  this  opinion  was  the  court."  (m)  Again,  in 
an  action  of  trespass  on  the  case  for  illegally  taking  toll,  the 
plaintiff  in  his  declaration  set  forth  a  charter  of  26  Hen.  6, 
discharging  him  from  toll.  The  defendant  pleaded  a  statute 
resuming  the  liberties  granted  by  Hen.  6.  The  plaintiff  re- 
plied that  by  the  statute  4  Hen.  7,  such  liberties  were  revived. 
And  this  was  held  to  be  no  departure,  (n)  So,  in  all  cases 
where  the  variance  between  the  former  and  the  latter  plead- 
ing is  on  a  point  not  material,  there  is  no  departure.  Thus,  in 
assumpsit,  if  the  declaration,  in  a  case  where  the  time  is  not 
•material,  (0)  state  a  promise  to  have  been  made  on  a  given 
day,  ten  years  ago,  and  the  defendant  plead  that  he  did  not 
promise  within  six  years,  the  plaintiff  may  reply  that  the  de- 
fendant did  promise  within  six  years,  without  a  departure;  (p) 
because,  the  time  laid  in  the  declaration  was  immaterial.1 

§  246.  Object  of  this  rule. —  The  rule  against  departure  is 
evidently  necessary  to  prevent  the  retardation  of  the  issue. 
For,  while  the  parties  are  respectively  confined  to  the  grounds 
they  have  first  taken  in  their  declaration  and  plea,  the  process 
of  pleading  will,  as  formerly  demonstrated,  exhaust,  after  a 
few  alternations  of  statement,  the  whole  facts  involved  in  the 

(m)  Bac.  Ab.,  Pleas,  etc.,  p.  452  (5th  e<L);  Owen  v.  Reynolds,  Fort.  841,  S.  0. 

(n)  Wood  v.  Hawkshead,  Yelv.  13. 

(o)  Vide  supra,  p.  383. 

(p)  Lee  v.  Rogers,  1  Lev.  110. 


1  A  departure  must  be  in  something 
material.  Gledstane  v.  Hewitt,  1 
•Cronip.  &  J.  565,  Ames'  Cases,  218. 
In  debt  on  an  appeal  bond  the  plaint- 
iffs described  themselves  in  the  writ 
as  "  executors  of,"  etc. ;  in  the  decla- 
ration, after  reciting  the  writ,  they 
called  themselves  "the  said  plaint- 
iffs ; "  in  the  replication  they  were 
styled  "executors  of,"  etc. ;  and  in  the 
demurrer  they  again  styled  them- 
selves "  the  said  plaintiffs."  This  was 
said  to  be  no  departure,  the  word 
"executors  "  in  the  writ  being  treated 
as  superfluous  description.  Sasscer 
v.  Walker's  Ex'rs,  5  Gill  &  J.  102,  25 
Am.  Dec.  272.  Where  the  gist  of  the 
-declaration  was  wrongful  arrest  and 


imprisonment,  and  the  replication 
stated  facts  which  showed  that,  not- 
withstanding the  color  of  legal  pro- 
cess set  up  by  the  plea,  the  arrest  and 
imprisonment  were  unlawful  and 
tortious,  this  was  no  departure. 
Breck  v.  Blanchard,  22  N.  H.  303. 
See,  also,  Matthews  v.  Hamblin,  28 
Miss.  611 ;  Legg  v.  Evans,  6  M.  &  W. 
36,  Ames'  Cases,  220. 

Advantage  may  be  taken  of  de- 
parture by  general  demurrer.  Bart 
lett  v.  Wells,  1  Best  &  Smith,  836 , 
Brine  v.  Gt  West  Ry.  Co.,  2  id.  402 ; 
Andrus  v.  Waring,  20  Johns.  153 ; 
Pease  v.  McKusick,  25  Me.  75 ;  Keag 
v.  Goodwin,  16  Mass.  1. 


§  247.]     RULES  TO  PREVENT  PROLIXITY  AND  DELAY.        450 

cause,  and  thereby  develop  the  question  in  dispute.  (g)  But 
if  a  new  ground  be  taken  in  any  part  of  the  series,  a  new  state 
of  facts  is  introduced,  and  the  result  is  consequently  post- 
poned. Besides,  if  one  departure  were  allowed,  the  parties 
might  on  the  same  principle  shift  their  ground  as  often  as 
they  pleased ;  and  an  almost  indefinite  length  of  altercation 
might  in  some  cases  be  the  consequence,  (r) 

RULE  IL 

§  247.  Where  a  plea  amounts  to  the  general  issne  it 
should  be  so  pleaded,  (s)  — 

It  has  been  explained  in  a  former  part  of  the  work  that  in 
most  actions  there  is  an  appropriate  form  of  plea  called  the 
general  issue,  fixed  by  ancient  usage  as  the  proper  method  of 
traversing  the  declaration,  when  the  pleader  means  to  deny 
the  whole  or  the  principal  part  of  its  allegations,  (t)  The 
meaning  of  the  present  rule  is  that  if,  instead  of  traversing 
the  declaration  in  this  form,  the  party  pleads  in  a  more  special 
way  matter  which  is  constructively  and  in  effect  the  same  as 
the  general  issue,  such  plea  will  be  bad ;  and  the  general  issue 
ought  to  be  substituted.1 

Thus,  to  a  declaration  in  trespass  for  entering  the  plaintiff's 
garden,  the  defendant  pleaded  that  the  plaintiff  had  no  such 
garden.  This  was  ruled  to  be  "  no  plea;  for  it  amounts  to 
nothing  more  than  not  guilty;  for  if  he  had  no  such  garden, 
then  the  defendant  is  not  guilty."  So  the  defendant  with- 
drew his  plea,  and  said  not  guilty,  (u)  So,  in  trespass  for  de- 
pasturing the  plaintiff's  herbage,  non  depascit  herbas  is  no  plea; 
it  should  be  not  guilty,  (#)  So,  in  debt  for  the  price  of  a  horse 
sold,  that  the  defendant  did  not  luy  is  no  plea,  for  it  amounts 
to  nil  debet.  (y)  Again,  in  trespass  for  entering  the  plaintiff's 

(q)  Supra,  pp.  193-197. 

(r)  Vide  2  Saund.  84  a,  n.  1. 

(s)  Co  Litt.  303  b;  Doct.  and  Stud.  271,  272;  Com.  Dig.,  Pleader  (E.  14);  Bac.  Ab.,  Pleas, 
etc.,  pp.  370-376,  5th  ed.;  10  Hen.  6, 16;  22  Hen.  6,  87;  Holler  v.  Bush,  Salk.  891;  Birch  v.  Wil- 
BOD,  2  Mod.  277;  Lynnet  v.  Wood,  Oo.  Car.  157;  Warner  T.  Wainsford,  Hob,  127;  12  Mod. 
637;  Saunder's  Case,  id.  513,  614. 

(*)  Supra,  p.  275. 

(u)  10  Hen.  6,  16. 

(*)  Doct.  PI.  42,  cites  28  Hen.  6,  87. 

(y)  Vin.  Ab.,  Certainty  in  Pleadings  (A.  15),  cites  Bro.  Traverse,  etc.,  pi.  275;  22  Edw.  4, 29. 

1  As  we  have  seen,  this  should  be    Hayes,  46  111.  155 ;  Wadhams  v.  Swan, 
taken  advantage  of  by  special  de-    109  id.  54. 
murrer    or    motion.      Cushman    v. 


460  RULES   TO   PREVENT   PROLIXITY   AND   DELAY.  [§  247. 

house  and  keeping  possession  thereof  for  a  certain  time,  the 
defendant  pleaded  that  J.  S.  was  seized  in  fee  thereof,  and 
being  so  seized  gave  license  to  the  defendant  to  enter  into  and 
possess  the  house,  till  he  should  give  him  notice  to  leave  it ; 
that  thereupon  the  defendant  entered  and  kept  the  house  for 
the  time  mentioned  in  the  declaration,  and  had  not  any  notice 
to  leave  it,  all  the  time.  The  plaintiff  demurred  specially,  on 
the  ground  that  this  plea  amounted  to  the  general  issue,  not 
guilty;  and  the  court  gave  judgment  on  that  ground  for  the 
plaintiff,  (z)  So,  in  an  action  of  trover  for  divers  loads  of 
corn,  the  defendant  in  his  plea  entitled  himself  to  them  as 
tithes  severed.  The  plaintiff  demurred  specially,  on  the  ground 
that  the  plea  "  amounted  but  to  not  guilty"  and  the  court  gave 
judgment  for  the  plaintiff,  (a)  So,  in  trespass  for  breaking 
and  entering  the  plaintiff's  close,  if  the  defendant  plead  a  de- 
mise to  him  by  the  plaintiff,  by  virtue  whereof  he,  the  defend- 
ant, entered  and  was  possessed,  this  is  bad,  as  amounting  to 
the  general  issue,  not  guilty.  (5)  So,  in  debt  on  a  bond,  the 
defendant,  by  his  plea,  confessed  the  bond,  but  said  that  it 
was  executed  to  another  person,  and  not  to  the  plaintiff; 
this  was  bad,  as  amounting  to  non  estfactum.  (c) 

These  examples  show  that  a  special  plea  thus  improperly 
substituted  for  the  general  issue  may  be  sometimes  in  a  nega- 
tive, sometimes  in  an  affirmative  form.  When  in  the  negative 
its  argumentativeness  (d)  will  often  serve  as  an  additional  test 
of  its  faulty  quality.  Thus,  the  plea  in  the  first  example, 
"  that  the  plaintiff  had  no  such  garden,"  is  evidently  but  an 
argumentative  allegation  that  the  defendant  did  not  commit, 
because  he  could  not  have  committed  the  trespass.  This,  how- 
ever, does  not  universally  hold ;  for  in  the  second  and  third  ex- 
amples the  allegations  that  the  defendant  "  did  not  depasture," 
and  "  did  not  buy,"  seem  to  be  in  as  direct  a  form  of  denial 
as  that  of  not  guilty.  If  the  plea  be  in  the  affirrnative,  the 
following  considerations  will  always  tend  to  detect  the  im- 
proper construction:  If  a  good  plea,  it  must  (as  formerly 
shown)  be  taken  either  as  a  traverse  or  as  in  confession  and 

(z)  Saunder's  Case,  12  Mod.  513,  514. 
(a)  Lynnett  v.  Wood,  Cro.  Car.  157. 
(6)  Jaques'  Case,  Sti.  355;  Hallett  v.  Byrt,  5  Mod.  258. 

(c)  Gifford  v.  Perkins,  1  Sid.  450;  1  Vent.  77,  S.  C. 

(d)  See  the  rule  against  argumentativeness,  supra,  p.  437. 


§  247.]     EULES  TO  PREVENT  PROLIXITY  AND  DELAY.        461 

avoidance,  (e)  Now,  taken  as  a  traverse,  such  a  plea  is  clearly 
open  to  the  objection  of  argumentativeness /  for  two  affirma- 
tives make  an  argumentative  issue.  (/)  Thus,  in  the  fourth 
example,  the  allegations  show  that  the  house  in  question  was 
the  house  of  J.  S.,  and  they  therefore  deny  argumentatively 
that  it  was  the  house  of  the  plaintiff,  as  stated  in  the  declara- 
tion. On  the  other  hand,  if  a  plea  of  this  kind  be  intended 
by  way  of  confession  and  avoidance,  it  is  bad  for  want  of 
color,  (g)  for  it  admits  no  apparent  right  in  the  plaintiff.  Thus, 
in  the  same  example,  if  it  be  true  that  J.  S.  was  seized  in  fee 
and  gave  license  to  the  defendant  to  enter,  who  entered  ac- 
cordingly, this  excludes  all  title  of  possession  in  the  plaintiff, 
and  without  such  title  he  has  no  color  to  maintain  an  action 
of  trespass.  (K)  So  in  the  example  where  the  defendant 
pleads  the  plaintiff's  own  demise,  the  same  observation  applies ; 
for  if  the  plaintiff  demised  to  the  defendant,  who  entered  ac- 
cordingly, the  plaintiff  would  then  cease  to  have  any  title  of 
possession,  and  he  consequently  has  no  color  to  support  an 
action  of  trespass. 

The  fault  of  wanting  color  being  in  this  manner  connected 
with  that  of  amounting  to  the  general  issue,  it  is  accordingly 
held  that  a  plea  will  be  saved  from  the  latter  fault  where 
express  color  is  given,  (i)  Thus,  in  the  example  of  express 
color  given,  in  a  former  part  of  this  work,  (&)  the  plea  is  cured, 
by  the  fictitious  color  of  title  there  given  to  the  plaintiff,  of 
the  objection  to  which  it  would  otherwise  be  subject,  that  it 
amounts  to  not  guilty.  So,  where  sufficient  implied  color  is 
given,  a  plea  will  never  be  open  to  this  kind  of  objection. 
And  it  is  farther  to  be  observed,  that,  where  sufficient  implied 
color  is  given,  the  plea  will  be  equally  clear  of  this  objection, 
even  though  it  consist  of  matter  which  might,  l>y  a  relaxa- 
tion of  practice,  fie  given  in  evidence  under  the  general  issue. 
The  relaxation  here  referred  to  is  that  formerly  noticed,  by 
which  defendants  are  allowed,  in  certain  actions,  to  prove, 

(e~)  Vide  supra,  pp.  264,  265. 
(/)  Vide  supra,  p.  439. 
(g)  Vide  supra,  p.  312. 
(A)  See  Holler  v.  Bush,  Salk.  394 

(t)  Anon.,  12  Mod.  537;  Saunders1  Case,  513,  514;  Lynett  v.  Wood,  Cro.  Car.  157;  Birch  T. 
Wilson,  2  Mod.  264. 
(fc)  Supra,  pp.  316,  317. 
30 


462  EULES    TO    PREVENT    PROLIXITY   AND   DELAY,  s       [§  247. 

under  this  issue,  matters  in  the  nature  of  confession  and  avoid- 
ance, as,  for  example,  in  assumpsit,  a  release  or  payment.  (I) 
In  such  cases  the  plaintiff  (as  formerly  stated),  (m)  though 
allowed,  is  not  obliged,  to  plead  non  assumpsit,  but  may,  if  he 
pleases,  plead  specially  the  payment  or  release ;  and  if  he  does, 
such  plea  is  not  open  to  the  objection  that  it  amounts  to  the 
general  issue,  (n) 

It  is  said  that  the  court  is  not  bound  to  allow  this  objection, 
but  that  it  is  in  its  discretion  to  allow  a  special  plea  amount- 
ing to  the  general  issue,  if  it  involve  such  matter  of  law  as 
might  be  unfit  for  the  decision  of  a  jury,  (o)  It  is  also  said 
that,  as  the  court  has  such  discretion,  the  proper  method  of 
taking  advantage  of  this  fault  is  not  by  demurrer,  but  by  mo- 
tion to  the  court  to  set  aside  the  plea  and  enter  the  general 
issue  instead  of  it.  (p)  It  appears  from  the  books,  however, 
that  the  objection  has  frequently  been  allowed  on  demurrer. 

As  a  plea  amounting  to  the  general  issue  is  usually  open 
also  to  the  objection  of  being  argumentative,  or  that  of  want- 
ing color,  we  sometimes  find  the  rule  in  question  discussed  as 
if  it  were  founded  entirely  in  a  view  to  those  objections.  This, 
however,  does  not  seem  to  be  a  sufficiently  wide  foundation 
for  the  rule ;  for  there  are  instances  of  pleas  which  are  faulty, 
as  amounting  to  the  general  issue,  which  yet  do  not  (as  already 
observed)  seem  fairly  open  to  the  objection  of  argumentative- 
ness,  (g)  and  which,  on  the  other  hand,  being  of  the  negative 
kind  or  by  way  of  traverse,  require  no  color.  Besides,  there 
is  express  authority  for  holding  that  the  true  object  of  this 
rule  is  to  avoid  prolixity,  and  that  it  is  therefore  properly 
classed  under  the  present  section.  For  it  is  laid  down  that 
"  the  reason  of  pressing  a  general  issue  is  not  for  insufficiency 
of  the  plea,  but  not  to  make  long  records  when  there  is  no 
cause."  (r) 

(0  Supra,  p.  283. 

(m)  Supra,  p.  286. 

(n)  Holler  v.  Bush,  Salk.  394;  Hussey  v.  Jacob,  Garth.  356 

(o)  Bac.  Ab.,  Pleas,  etc.,  p.  374,  5th  ed.;  Birch  v.  Wilson,  2  Mod.  274. 

(p)  Warner  v.  Wainsford,  Hob.  127;  Ward  v.  Blunt's  Case,  1  Leon.  178. 

(g)  Supra,  p.  461. 

(r)  Warner  v.  Wainsford,  Hob.  127.    See  also  Com.  Dig.,  Pleader  (E.  13). 


§  2iS.]     KULES  TO  PREVENT  PROLIXITY  AND  DELAY.        463 

RULE  m. 

§  248.  Surplusage  is  to  be  avoided,  (s)1  — 

Surplusage  is  here  taken  in  its  large  sense,  as  including  un- 
necessary matter  of  whatever  description,  (t]2  To  combine 
with  the  requisite  certainty  and  precision  the  greatest  pos- 
sible brevity  is  now  justly  considered  as  the  perfection  of  plead- 
ing. This  principle,  however,  has  not  been  kept  uniformly  in 
view  at  every  era  of  the  science.  For,  although  it  appears  to 
have  prevailed  at  the  earliest  periods,  it  seems  to  have  been 
nearly  forgotten  during  a  subsequent  interval  of  our  legal 
history;  (u)  and  it  is  to  the  wisdom  of  modern  judges  that  it 
owes  its  revival  and  restoration. 

1.  The  rule  as  to  avoiding  surplusage  may  be  considered 
first  as  prescribing  the  omission  of   matter  wholly  foreign. 
An  example  of  the  violation  of  the  rule,  in  this  sense,  occurs 
when  a  plaintiff,  suing  a  defendant  upon  one  of  the  covenants 
in  a  long  deed,  sets  out  in  his  declaration  not  only  the  cove- 
nant on  which  he  sues,  but  all  the  other  covenants,  though 
relating  to  matters  wholly  irrelevant  to  the  cause,  (a?) 

2.  The  rule  also  prescribes  the  omission  of  matter  which 
though  not  wholly  foreign,  does  not  require  to  le  stated*    Any 
matters  will  fall  within  this  description  which,  under  the  va- 

(s)  Bristow  v.  Wright,  Doug.  667;  1  Smith,  L.  C.  1417;   1  Saund.  233,  n.  2;  Yates  v.  Carlisle, 
1  Black.  270. 

(t)  In  its  strict  and  confined  meaning  it  imports  matter  wholly  foreign  and  irrelevant. 
(M)  See  the  remarks  of  Sir  M.  Hale,  Hist,  of  Com.  Law,  chs.  vii,  viii. 
(a;)  Dundas  v.  Lord  Weymouth,  Cowp.  665;  Price  v.  Fletcher,  id.  727. 

1 "  Whenever  the  whole  allegation  tails,  or  something  out  of  which  no 

•can  be  stricken  out,  without  affect-  cause  of  action  or  defense  could  arise, 

ing  the  legal  right  set  up  by  the  party,  Lee  Bank  v.  Kitching,  11  Abb.  Pr. 

it  is  impertinent  and  may  be  rejected  435.    See  Smith  v.  Holmes,  54  Mich, 

as  surplusage.     United    States    v.  105;  Hagerty  v.  Andrews,  94  N.  Y. 

Burnham,  1  Mason,  66."  Thompson  v.  195;  Campbell  v.  Taylor,  3  Utah,  325. 

People,  23  Wend.  597.  *  Descriptive  ivords.  though  unneo 

2  The  maxim  of  the  law  is  "Utile,  essary,  may  be  traversed,  and  must 
per  inutile,  non  vitiatur."    Broom,  be  proved.  Gridleyv.  City* of  Bloom- 
Max.  627;  Shipherd  v.  Field,  70  111.  ington,  68111.  47;  Katzv.  Moessinger, 
438;  Goff  v.  T.,  St.  L.  &  R.  G.  Ry.,  28  7  III  App.  536;  Leke's  Case,  Dyer, 
III  App.  529.  365,  2  Saund.  207a,  n. ;  Dickensheets 

3  As  in  Donovan  v.  H.  &  N.  H.  Ry.,  v.  Kauffman,  28  Ind.  251.    See  fur- 
heretofore  cited.    The  term  "irrele-  ther,  Cahill  v.  Palmer,  17  Abb.  Pr. 
vancy,"  as  used  in  the  code,  is  like  196,  45  N.  Y.  478;  Rollett  v.  Heiman, 
impertinence  in  chancery  pleading,  120  Ind.  611. 

•embracing  prolixity  or  needless  de- 


464        EULES  TO  PREVENT  PROLIXITY  AND  DELAY.     [§  249. 

rious  rules  enumerated  in  a  former  section  as  tending  to  limit 
or  qualify  the  degree  of  certainty,  it  is  unnecessary  to  al- 
lege; for  example,  matter  of  mere  evidence,  matter  of  law,  or 
other  things  which  the  court  officially  notices,  matter  coming 
more  properly  from  the  other  side,  matter  necessarily  implied, 
etc.1 

3.  The  rule  prescribes,  generally,  the  cultivation  of  brevity 
or  avoidance  of  unnecessary  prolixity  in  the  manner  of  state- 
ment. A  terse  style  of  allegation  involving  a  strict  retrench- 
ment, even  of  unnecessary  words,  is  the  aim  of  the  best  prac- 
titioners in  pleading,  and  is  considered  as  indicative  of  a  good 
school.2 

§  249.  Surplusage  cannot  be  taken  advantage  of  by  de- 
murrer.—  Surplusage,  however,  is  not  a  subject  for  demurrer; 
the  maxim  being  that  utile,  per  inutile,  non  mtiatur?  But 
when  any  flagrant  fault  of  this  kind  occurs  and  is  brought  to 
the  notice  of  the  court,  it  is  visited  with  the  censure  of  the 
judges,  (a)  They  have  also  in  such  cases,  on  motion,  referred 
the  pleadings  to  the  master  that  he  might  strike  out  such 
matter  as  is  redundant,  and  capable  of  being  omitted,  without 
injury  to  the  material  averments,  and  in  a  clear  case  will  them- 
selves direct  such  matter  to  be  struck  out.  And  the  party 
offending  will  sometimes  have  to  pay  the  costs  of  the  applica- 
tion. (5) 4 

This  is  not  the  only  danger  arising  from  surplusage. 

Though  traverse  cannot  be  taken  (as  elsewhere  shown)  on 

(a)  Yates  v.  Carlisle,  1  Black.  270;  Price  v.  Fletcher,  Cowp.  727. 

(6)  Price  v.  Fletcher,  Cowp.  727;  Bristow  v.  Wright,  Doug.  667;  1  Tidd.  552, 4th  ed. ;  Nichol 
v.  Wilton,  1  Chitty  Rep.  449,  450. 

1  Marie  v.  Garrison,  83  N.  Y.  14  v.  Rogers,  15  Wend.   351;   Petty  v. 

2  "  I  have  observed  that  correctness  Trustees,  etc.,  95  Ind.  280;   Ashe  v. 
in  pleading  and  real  law-knowledge  Gray,  90  N.  C.  137;  Williams  v.  Sex- 
keep  pace  with  each  other."    Judge  ton,  19  Wis.  42;  Russell  v.  Chambers, 
Smith,  Smith's  Rep.  N.  H.  525.  31  Minn.  54.    While  mere  surplusage 

3  See  supra,  note  2,  p.  463.  will  not  vitiate,  yet  where  some  state- 

4  See  Lowry  v.  Kinsey,  26  111.  App.  ment  on  the  subject  is  necessary, 
309;  Bailey  v.  Lindsay,  35  Mo.  App.  and  it  cannot  be  wholly  rejected,  a 
675;  Wickersham  v.  Crittenden,  93  variance  or  failure  to  prove  as  laid 
Cal.  17;  Terry  v.  Wenderoth,  28  W.  is  fatal.    Lake  E.  &  W.  R.  R.  Co.  v. 
N.  C.  517;   Murphy  v.  McGraw,  74  Christison,  39  111.  App.  495;  Sabine& 
Mich.   318;   Cannon  v.  Lindsey,  85  E.  T.  R.  Co.  v.  Brousard,  79  Tex.  617. 
Ala,  198,  7  Am.  St.  Rep.  38;  Russell 


§  249.]  BITLES   TO   PREVENT   PROLIXITY   AND   DELAY.  465 

an  immaterial  allegation,  (c)  yet  it  often  happens  that  when 
material  matter  is  alleged  with  an  unnecessary  detail  of  cir- 
cumstances, the  essential  and  non-essential  parts  of  the  state- 
ment are  in  their  nature  so  connected  as  to  be  incapable  of 
separation,  and  the  opposite  party  is  therefore  entitled  to  in- 
clude, under  his  traverse,  the  whole  matter  alleged,  (d)  The 
consequence  evidently  is,  that  the  party  who  has  pleaded  with 
such  unnecessary  particularity  has  to  sustain  an  increased  bur- 
den of  proof,  and  incurs  greater  danger  of  failure  at  the  trial.1 
Most  of  the  principal  rules  of  pleading  have  now  been  classed 
in  reference  to  certain  common  objects  which  each  class  or  set 
of  rules  is  conceived  to  contemplate;  and  have  been  explained 
and  illustrated  in  their  connection  with  these  objects  and  with 
each  other.  But  there  still  remain  certain  rules,  also  of  a  prin- 
cipal or  primary  character,  which  have  been  found  not  to  be 
reducible  within  this  principle  of  arrangement,  being,  in  respect 
of  their  objects,  of  a  miscellaneous  and  unconnected  kind.  These 
will  form  the  subject  of  the  following  section., 

(c)  Supra,  p.  340. 

(d)  Vide  supra,  pp.  343,  344. 

i  See  cases  supra,  p.  463,  n.  4.    Cf.  Kerr  v.  Topping  (Iowa),  80  N.  W.  R.  321. 


CHAPTER  XIII. 

OF  CERTAIN  MISCELLANEOUS  RULES 

which  relate  either  to  the  declaration,  the  plea  ox  pleadings  in 
general,  and  are  considered  in  that  order. 

RULE  I. 

§  250.  The  declaration  should  commence  with  a  recital  of 
the  original  writ,  (e) l  —  [This  rule  is  obsolete,  but  the  rela- 
tion of  the  original  to  the  declaration  should  be  understood, 
and  the  text  is  preserved.] 

The  commencement  of  the  declaration,  in  personal  actions, 
generally  consists  of  a  short  recital  of  the  original  writ.  Ac- 
cordingly, where  the  writ  directs  the  sheriff  to  summon  the 
defendant,  as  in  debt  and  covenant,  the  declaration  begins, 
"  C.  D.  was  summoned  to  answer  A.  B.  of  a  plea,"  etc.  On 
the  other  hand,  where  by  the  writ  the  defendant  is  required 
to  be  put  by  gages  and  safe  pledges,  as  in  trespass,  and  trespass 
on  the  case,  the  commencement  is,  "  C.  D.  was  attached  to 
answer  A.  B.  of  a  plea,"  etc.  The  declaration  then  proceeds 
farther  to  recite  the  writ  by  showing  the  nature  of  the  par- 
ticular requisition  or  exigency  of  that  instrument;  as,  for  ex- 
ample (in  debt),  "  of  a  plea  that  he  render  to  the  said  A.  B. 

the  sum  of pounds,"  etc.  For  farther  example  the  reader 

may  be  referred  to  the  different  specimens  of  declaration 
given  in  the  first  chapter.  From  these  it  will  appear  that  in 
debt,  covenant,  detinue  and  trespass,  nearly  the  whole  original 
writ  is  recited,  but  not  in  trespass  on  the  case.  The  course 
was  formerly  the  same  in  the  latter  action  also;  but  as  this 
led  to  an  inconvenient  prolixity,  it  was  by  rule  of  court  (k) 
provided  that  in  that  and  some  other  actions  it  shall  be  suffi- 

(e)  Com.  Dig.,  Pleader  (C.  12). 

(fc)  1  Tidd,  369  (4th  ed.);  1  Saunrt.  818,  n.  3. 

l  Yatter  v.  Pitkin  (Vt),  29  AtL  R.  370;  Reed  v.  Lane,  61  Vt  481. 


§  250.]  CERTAIN   MISCELLANEOUS   RULES.  4C7 

cient  to  mention  generally  the  nature  of  the  action;  thus,  "a 
plea  of  trespass  upon  the  case,"  etc.,  and  such  summary  form 
has  accordingly  been  since  used. 

In  real  and  mixed  actions  the  writ  is,  in  general,  not  so  form- 
ally recited.  Thus,  in  the  writ  of  right,  the  count  begins,  "A.  B. 
demands  against  C.  D.,"  etc. ;  and  the  case  is  the  same  in  forme- 
don  and  dower.  (I)  In  general,  however,  it  will  be  observed 
that  this  commencement  comprises  a  repetition  of  the  tenor  of 
the  writ,  and  in  some  actions,  as  in  quare  impedit,  the  writ 
is  as  formally  recited  as  in  actions  personal. 

The  recital  of  the  writ  is  a  form  which  the  declaration  has 
borrowed  from  the  style  in  which  it  was  entered  on  record; 
for  the  declaration  itself,  when  actually  pronounced  in  court, 
began,  in  general,  with  the  words  Ceo  vous  monstre,  etc.  (n) 

The  recital  of  the  writ  is  not  considered  as  an  essential  part 
of  the  declaration ;  and  though  the  recital  be  erroneous  the 
declaration  is  not  therefore  bad.  (0} 

The  rule  under  consideration,  of  course,  does  not  apply  where 
the  proceeding  is  by  bill;  but  in  that  case,  also,  the  declaration 
has  its  proper  formal  commencement. 

The  declaration  by  bill  commences  with  the  following  for- 
mula: "A.  B.  complains  of  0.  D.,"  etc.,  and  in  the  king's  bench 
proceeds,-  in  general,  to  allege  that  the  defendant  is  "  in  the 
custody  of  the  marshal  of  the  marshalsea  of  our  lord  the  now 
king  before  the  king  himself,"  (p)  viz. :  that  he  is  a  prisoner  of 
the  court;  but  in  case  of  an  action  against  an  attorney  or  offi- 
cer of  the  court,  it  alleges  the  defendant  to  be  such  attorney 
or  officer,  without  stating  him  to  be  in  custody,  etc.  In  the 
common  pleas  the  capacity  of  the  defendant,  as  attorney  or 
officer,  is  in  a  similar  manner  alleged;  and  in  the  exchequer 
the  declaration  commences  by  describing  the  plaintiff  as  "a 
debtor  to  our  sovereign  lord  the  king."  Of  the  meaning  of 
these  different  forms  some  explanation  may  be  collected  from 
the  first  chapter  of  this  work,  but  it  will  be  found  more 
copiously  in  treatises  which  profess  to  consider  at  large  the 
origin  of  the  respective  jurisdictions  of  the  superior  courts,  (r) 

(I)  See  the  forms  of  these  counts  in  the  first  chapter. 
(n)  See  Appendix,  note  (75). 

(o)  Com.  Dig.,  Pleader  (C.  12);  1  Saund.  318,  n.  3;  Helliott  v.  Selby,  Salk.  701. 
(p)  Com.  Dig.,  Pleader  (C.  8). 

(r)  And  see  the  forms  of  commencement  by  original  and  by  bill  in  the  different  courts, 
given  at  large,  2  Chitty,  1-4;  1  Arch.  72. 


468 


CERTAIN  MISCELLANEOUS   RULES. 

RULE  ILL 


[§  251. 


§  251.  The  declaration  should,  in  conclusion,  lay  damages1 
and  allege  production  of  suit. — 

First,  the  declaration  must  lay  damages. 

Impersonal  and  mixed  actions  (e)  the  declaration  must  allege, 
in  conclusion,  that  the  injury  is  to  the  damage  of  the  plaintiff, 
and  must  specify  the  amount  of  that  damage,  (f)  In  personal 
actions  there  is  the  distinction  formerly  explained  between 
actions  that  sound  in  damages  and  those  that  do  not;  (g)  but 
in  either  of  these  cases  it  is  equally  the  practice  to  lay  dam- 
ages. There  is,  however,  this  difference:  that  in  the  former 
case  damages  are  the  main  object  of  the  suit,  and  are  there- 
fore always  laid  high  enough  to  cover  the  whole-  demand; 
but  in  the  latter,  the  liquidated  debt  or  the  chattel  demanded 
being  the  main  object,  damages  are  claimed  in  respect  of  the 
detention  only  of  such  debt  or  chattel,  and  are  therefore  usually 
laid  at  a  small  sum. 

The  plaintiff  cannot  recover  greater  damages  than  he  has 
laid  in  the  conclusion  of  his  declaration.  (A) 2 

In  real  actions  no  damages  are  to  be  laid,  because  in  these 
the  demand  is  specifically  of  the  land  withheld,  and  damages 
are  in  no  degree  the  object  of  suit. 

(e)  But  penal  actions  are  an  exception. 

(/)  Com.  Dig.,  Pleader  (C.  84;;  10  Rep.  116  b,  117  a,  b. 

(gf)  Vide  supra,  p.  238.  - 

(A)  Com.  Dig.,  Pleader  (C.  84);  Vin.  Ab.,  Damages  (R.);  10  Rep.  117  a,  b. 


1  Special  damages  must  be  specially 
alleged.    Watkins  v.  Junker,  4  Tex. 
Civ.  App.  629;  Campbell  v.  Cook,  86 
Tex.  630;  Quincy  Coal  Co.  v.  Hood,  77 
III  75;  Home  v.  Sullivan,  83  id.  80. 
As  to  what  are  special  damages,  see 
Wood  worth  v.  Woodburn,  20  111.  184; 
Roberts  v.  Graham,  6  Wall.  578;  Ward 
v.  Smith,  11  Price,  19;  1  Sutherland 
on  Damages,  763. 

2  This  allegation  is  called  the  ad 
damnum  clause.    If  the  declaration 
shows  a  claim  of  damages  greater 
than  the  verdict,  the  omission  of  an 
ad  damnum  is  immaterial.    Burst  v. 


Wayne,  13  111.  599.  After  verdict  the 
ad  damnum  may  be  increased  by 
amendment  to  embrace  the  recov- 
ery. Brown  v.  Smith,  24  III  196; 
Tomlins  v.  Earnshaw,  112  id.  811.  Or 
a  remittitur  nifiy  be  entered  for  the 
excess  above  the  sum  alleged.  Crews 
v.  Lackland,  67  Mo.  619;  White  v. 
Cannadee,  25  Ark.  41.  Where  juris- 
diction depends  on  the  amount  in- 
volved, the  amount  claimed  in  the 
complaint  or  declaration  governs  the 
jurisdiction.  Ham  den  v.  Merwin,  54 
Conn.  418. 


§  252.]  CERTAIN   MISCELLANEOUS   BULES.  469 

Secondly,  the  declaration  should  also  conclude  with  the  pro- 
duction of  suit.  [The  reason  for  this  rule  having  ceased,  it  is 
no  longer  required.  The  observations  of  the  author  have  been 
transferred  to  the  Appendix,  note  88.] 

RULE  V. 

§  252,  Pleas  must  be  pleaded  with  defense,  (y)  — 

Defense  here  signifies  a  certain  form  of  words  by  which  the 
plea  is  introduced. 

This  form  varies,  in  some  degree,  according  to  the  nature  of 
the  action. 

In  the  writ  of  right,  where  the  demandant  claims  on  his  seisin, 
it  is  thus:  "And  the  said  C.  D.,  by  E.  F.,  his  attorney,  comes 
and  defends  the  right  of  the  said  A.  B.  and  his  seisin  when,  etc., 
and  all,  etc.,  and  whatsoever,  etc.,  and  chiefly  of  the  tenements 
aforesaid,  with  the  appurtenances,  as  of  fee  and  right,  etc.,  and 
says; "  and  then  the  matter  of  the  plea  is  stated,  (z)  In  a  writ 
of  right,  when  the  demandant  claims  on  the  seisin  of  his  an- 
cestor, it  is  thus:  "And  the  said  C.  D.,  by  E.  F.,  his  attorney, 
comes  and  defends  the  right  of  the  said  A.  B.,  and  the  seisin 
of  the  said  G.  B.  (the  ancestor),  when,  etc.,  and  all,  etc.,  and 
whatsoever,  etc.,  and  chiefly  of  the  tenements  aforesaid,  with 
the  appurtenances,  as  of  fee  and  right,  etc.,  and  says."  (a) 

In  formedon  the  defense  is :  "  And  the  said  C.  D.,  by  E.  F., 
his  attorney,  comes  and  defends  his  right  when,  etc.,  and 
says."  (J) 

The  action  of  dower  is  an  exception  to  the  rule,  and  in  this 
suit  defense  is  not  made.  (<?) 

In  quare  impedit  the  defense  is:  "And  the  said  0.  D.,  by 
E.  F.,  his  attorney,  comes  and  defends  the  wrong  and  injury 
when,  etc.,  and  says." 

In  trespass:  "  And  the  said  C.  D.,  by  E.  F.,  his  attorney, 
comes  and  defends  the  force  and  injury  when,  etc.,  and  says." 

(y)  Co.  Litt.  127  b;  Tampian  v.  Newsam,  Yelv.  210;  Hampson  v.  Bill,  3  Lev.  240. 

(z)  3  Bl.  Com.,  Appendix,  No.  I,  sec.  5. 

(a)  Booth,  94;  Co.  Ent.  181  b;  3  Chitty,  652. 

(6)  Booth,  148.  Defenditjus  suum,  etc.,  is  the  Lathi  phrase:  but  this  is  ungrammatically 
put,  as  Blackstone  conjectures,  for  ejus,  and  refers  to  the  right  of  the  demandant.  See  3  BL 
Com.  297. 

(c)  Rast.  Ent.  228. 


470  CERTAIN   MISCELLANEOUS   RULES.  [§  252. 

In  other  personal  actions:  "And  the  said  C.  D.,  by  E.  F.,  his 
attorney,  comes  and  defends  the  wrong  and  injury  when,  etc., 
and  says."  (d) 

The  word  "  comes  "  expresses  the  appearance  of  the  defend- 
ant in  court.  It  is  taken  from  the  style  of  the  entry  of  the 
proceedings  on  the  record,  and  formed  no  part  of  the  viva  voce 
pleading.  It  is,  accordingly,  not  considered  as  in  strictness 
constituting  a  part  of  the  plea.  (e) 

Effect  of  " defends"  —  The  word  " defends,"  as  used  in  these 
formulae,  has  not  its  popular  sense.  It  imports  denial,  being 
derived  from  the  law-Latin  defendere,  or  the  law-French  de- 
fend™ (both  of  which  signified  to  deny] ;  (f )  and  the  effect  of  the 
expression  is,  that  the  defendant  denies  the  right  of  the  plaintiff 
or  the  force  or  wrong  charged,  (g)  This  denial,  however,  is 
mere  matter  of  form ;  for  the  defense  is  used,  not  merely  when 
the  plea  is  by  way  of  denial  or  traverse,  but  when  by  confes- 
sion and  avoidance  also;  and,  even  when  the  plea  does  deny, 
other  words  are  employed  for  that  purpose,  as  we  have  seen, 
besides  those  of  the  formal  defense.1 

The  etc.'s  supply  the  place  of  words  which  were  formerly 
inserted  at  length.  In  a  personal  action,  for  example,  the 
form,  if  fully  given,  would  be  as  follows :  "  And  the  said  C.  D., 
by  E.  F.,  his  attorney,  comes  and  defends  the  force"  (or 
"wrong")  "and  injury  when  and  where  it  shall  behove  him, 
and  the  damages  and  whatsoever  else  he  ought  to  defend,  and 
says."  (A) 2 

At  a  time  when  this  formula  was  more  considered  than  it 
now  is,  particular  effects  were  assigned  to  these,  its  different 
clauses.  It  was  said  that  by  defending  "  when  and  where  it 

(d)  See  examples  of  defense  in  the  different  pleas  in  the  first  chapter. 

(e)  1  Chitty,  411;  Salk.  544. 
(/)  See  Appendix,  note  (79). 
(gr)  See  Appendix,  note  (80). 
(A)  Bac.  Ab.,  Pleas,  etc.  (D.). 

iThe  meaning  of  the  word  "de-  United  States  v.  Ordway,  80  Fed. 
fense"  is  of  ten  of  great  importance  in  Rep.  32;  Travis  v.  Barger,  24  Barb, 
the  construction  of  statutes,  and  the  615 ;  King  v.  Bell,  13  Neb.  409 ;  Miller 
distinction  between  its  popular  and  v.  Martin,  8  N.  J.  L.  201.  The  word 
technical  legal  meaning,  as  pointed  "  defense "  has  been  held  not  to  in- 
cut by  the  author,  must  be  borne  in  elude  matter  of  abatement  Wilson 
mind.  See  Stewart  v.  Travis,  10  How.  v.  Poole,  33  Ind.  448. 
Pr.  148;  Coles  v.  Soulsby,  SICal.  47  ;  2  See  3  Cooley's  Black.  297-a 


§  252.]  CERTAIN   MISCELLANEOUS   RULES.  471 

shall  behove  him,"  the  defendant  impliedly  acknowledged  the 
jurisdiction  of  the  court,  and  by  defending  the  "  damages  and 
whatsoever  else  he  ought  to  defend,"  he  in  effect  admitted 
the  competency  of  the  plaintiff  to  sue ;  that  by  the  former 
words,  therefore,  he  was  excluded  from  proceeding  to  plead 
to  the  jurisdiction,  and  by  the  latter  from  pleading  to  the  dis- 
ability of  the  plaintiff.  Hence  arose  a  distinction  between 
"full  defense"  and  "half  defense,"  the  former  being  that  in 
which  all  the  clauses  were  inserted,  the  latter  being  abridged 
thus :  "  And  the  said  C.  D.,  by  E.  F.,  his  attorney,  comes  and 
defends  the  force"  (or  "wrong")  "and  injury,  and  says." 
Half  defense  was  used  where  the  defendant  intended  to  plead 
to  the  jurisdiction  or  in  disability,  and  full  defense  in  other 
cases.1  All  this  doctrine,  however,  is  now,  in  effect,  super- 
seded by  the  uniform  practice  of  making  defense  with  an 
etc.,  as  in  the  forms  first  above  given,  it  having  been  decided 
that  such  method  will  operate  either  as  full  defense  or  half 
defense,  as  the  nature  of  the  plea  may  require,  (i) 

Defense  is  used  in  almost  all  actions.  It  has  been  seen, 
however,  that  dower  is  an  exception,  and  the  case  is  the  same 
with  an  assise;  the  form  of  commencing  the  plea  in  these  ac- 
tions being  merely  "  comes  and  says,"  and  not  "  comes  and 
defends."  (k) 

Defense  is  used,  too,  in  almost  every  description  of  pleas  in 
those  actions  in  which  it  obtains.  (I) 

This  formula  can  perhaps  be  considered  in  no  other  light 
than  as  one  of  those  verbal  subtleties  by  which  the  science  of 
pleading  was,  in  many  instances,  anciently  disgraced.  It  is  at 
least  difficult  to  discover  in  what  solid  view  much  considera- 
tion could  be  attached  to  the  use  of  these  technical  words,  (m) 
Yet  they  have  been  formerly  held  to  be  essential,  (ri)  are 
still  constantly  used,  and  cannot  in  general  with  safety  be 
omitted.  (0) 

(0  Co.  LItt.  127  b;  Alexander  v.  Maurman,  Willes,  40;  Wilkes  v.  Williams,  8  T.  R  638;  2 
Saund.  209  c,  n.  1;  1  Chitty,  413,  414. 

(fc)  Booth,  118.    In  scire  facias  also,  no  defense  Is  made     Bac.  Ab.,  Fleas,  etc.  (DO. 

(I)  See  the  few  exceptions  noticed,  1  Chitty,  413. 

(m)  See  Appendix,  note  (81). 

(n)  Co.  Litt.  127  b;  Hampson  v.  Hill,  3  Lev.  240. 

(o)  1  Chitty,  412;  1  Arch.  162. 

!See  McCormick  Mfg.  Co.  v.  Snell,  23  III  App.  TO 


4-72  CERTAIN   MISCELLANEOUS    EULES.  [§§  253,  254. 

RULE  VL 

§  253.  Pleas  in  abatement  must  give  the  plaintiff  a 
better  writ  or  bill,  (p) l  — 

The  meaning  of  this  rule  is  that,  in  pleading  a  mistake  of 
form  in  abatement  of  the  writ  or  bill,  the  plea  must  at  the 
same  time  correct  the  mistake  so  as  to  enable  the  plaintiff  to 
avoid  the  same  objection  in  framing  his  new  writ  or  bill,  (q) 
Thus,  if  a  misnomer  in  the  Christian  name  of  the  defendant  be 
pleaded  in  abatement,  the  defendant  must  in  such  plea  show 
what  his  true  Christian  name  is,  and  even  what  is  his  true 
surname  ;(r)  and  this  though  the  true  surname  be  already 
stated  in  the  declaration,  lest  the  plaintiff  should  a  second 
time  be  defeated  by  error  in  the  name.  For  these  pleas,  as 
tending  to  delay  justice,  are  not  favorably  considered  in  law, 
and  the  rule  in  question  was  adopted  in  a  view  to  check  the 
repetition  of  them. 

This  condition  of  requiring  the  defendant  to  give  a  better 
writ  is  often  a  criterion  to  distinguish  whether  a  given  mat- 
ter should  be  pleaded  in  abatement  or  in  bar.  (s)  The  latter 
kind  of  plea,  as  impugning  the  right  of  action  altogether,  can 
of  course  give  no  better  writ,  for  its  effect  is  to  deny  that 
under  any  form  of  writ  the  plaintiff  could  recover  in  such  ac- 
tion. If,  therefore,  a  better  writ  can  be  given,  this  shows 
that  the  plea  ought  not  to  be  in  bar  but  in  abatement. 

It  may  also  be  laid  down  as  a  rule  that : 

RULE  VIL 

§  254.  Dilatory  pleas  must  be  pleaded  at  a  preliminary 
stage  of  the  suit. — 

For  dilatory  pleas  are  in  general  not  allowable  after  full 

(p)  Com.  Dig.,  Abatement  (L  1);  Evans  v.  Stevens,  4  T.  R.  227;  Mainwarlng  v.  Murman,  9 
Bos.  &  Pul.  130;  Haworth  v.  Spraggs,  8  T.  E.  515. 
(g)  See  Appendix,  note  (82). 
(T)  8  T.  B.  615. 
(a)  1  Saund.  284,  n.  4;  Evans  v.  Stevens,  4  T.  E.  227. 

1  Am.  Exp.  Co.  v.  Haggard,  87  111.  tainder,  alien  enemy,  etc.,  In  which 

465 ;  Hey  man  v.  Co  veil,  36  Mich.  157 ;  instances,  the  action  being  suspended 

East  v.  Cain,  49  id.  473 ;  Carew  v.  on  account  of  the  disability  of  the 

Matthews,  41  id.   576.    But  as  has  plaintiff  to  sue,  he  cannot  have  a 

been    already    pointed    out  (supra,  better  writ  See  Boston  Type  Foundry 

p.  141,  n.  2),  there  is  an  exception  to  v.  Spooner,  5  Vt  93. 
this  rule  in  cases  of  outlawry,  at- 


§  255."]  CERTAIN   MISCELLANEOUS   RULES.  473 

defense;  (t)  nor  after  a  general  imparlance;  (u)  nor  after  oyer  (%) 
or  a  view;  (y)  nor  after  voucher;  (z)  nor  after  &plea  in  bar.  (a) 
And  besides  these,  there  are  other  proceedings  also  which 
have  the  effect  of  excluding  a  subsequent  dilatory  plea,  but 
being  of  a  less  ordinary  and  general  kind,  it  is  not  necessary 
here  to  notice  them  more  distinctly.  (5)1 

RULE  VIIL 

§  255.  All  affirmative  pleadings  which  do  not  conclude 
to  the  country  must  conclude  with  a  verification,  (c) — 

"Where  an  issue  is  tendered  to  be  tried  by  jury,  it  has  been 
shown  that  the  pleading  concludes  to  the  country,  (d)  In  all 
other  cases,  pleadings,  if  in  the  affirmative  form,  must  con- 
clude with  a  formula  of  another  kind,  called  a  verification  or 
an  averment.  The  verification  is  of  two  kinds  —  common  and 
special.  The  common  verification  is  that  which  applies  to 
ordinary  cases,  and  is  in  the  following  form :  "  And  this  the 
said  A.  B.  [or  0.  D.]  is  ready  to  verify."  (e)  The  special  veri- 
fications are  used  only  where  the  matter  pleaded  is  intended 
to  be  tried  by  record  or  by  some  other  method  than  a  jury. 
They  are  in  the  following  forms:  "  And  this  the  said  A.  B.  or 
C.  D.  is  ready  to  verify  by  the  said  record ; "  or,  "  And  this  the 
said  A.  B.  [or  C.  D.]  is  ready  to  verify  when,  where  and  in  such 
manner  as  the  court  here  shall  order,  direct  or  appoint."  (/") 

The  origin  of  this  rule  is  as  follows : 

It  was  a  doctrine  of  the  ancient  law,  little  if  at  all  noticed 
by  modern  writers,  that  every  pleading  affirmative  in  its  nat- 
ure must  be  supported  by  an  offer  of  some  mode  of  proof;  (g) 
and  the  reference  to  a  jury,  who,  as  formerly  explained,  were 
in  the  nature  of  witnesses  to  the  fact  in  issue,  (A)  was  consid- 
ered as  an  offer  of  proof,  within  the  meaning  of  that  doc- 

(t)  Com.  Dig.,  Abatement  (L  16). 

(w)  Ibid.  (I.  20). 

(*)  Ibid.  (I.  22). 

(y)  Ibid.  a.  25). 

(*)  Ibid.  (I.  28). 

(a)  Ibid.  (L  23). 

(6)  See  the  instances  Com.  Dig.,  Abatement  (J.  26),  etc.    See  Appendix,  note  (8B>. 

(c)  Com.  Dig..  Pleader  (E.  32),  (E.  33);  Co.  Litt.  303  a;  Finch,  Law.  859. 

(d)  Vide  supra,  p.  333. 

(e)  See  the  various  examples  of  pleading  given  in  the  course  of  this  work. 
(/)  Vide  supra,  p.  335. 

(g)  See  Appendix,  note  (84). 
<fc)  Supra,  p.  261. 

1  See  Order  of  Pleading. 


474:  CERTAIN   MISCELLANEOUS    KULES.  [§  256. 

trine.  (*)  "When  the  proof  proposed  was  that  by  jury,  the 
offer  was  made  in  the  viva  voce  pleading  by  the  words  prest 
cTaverrer  GY  prest,  etc.,(k)  which  in  the  record  was  translated, 
Et  hoc  paratus  est  verificare.  On  the  other  hand,  where  other 
modes  of  proof  were  intended,  the  record  ran,  Et  lioc  paratus 
€st  verificare  per  recordum,  or  Et  hoc  paratus  est  verificare  quo- 
cunqiie  modo  curia  consideraverit.  But  while  these  were  the 
forms  in  general  observed  there  was  the  following  exception, 
that  on  the  attainment  of  an  issue  to  be  tried  by  jury  the 
record  marked  that  result  by  a  change  of  phrase,  and  substi- 
tuted for  the  verification  the  conclusion  ad  patriam,  to  the- 
country.  The  written  pleadings  (which,  it  will  be  remem- 
bered, are  framed  in  the  ancient  st}7le  of  the  record)  (Z)  still 
retain  the  same  formulae  in  these  different  cases,  and  with  the 
same  distinctions  as  to  their  use.  They  preserve  the  conclu- 
sion to  the  country  to  mark  the  attainment  of  an  issue  triable 
by  jury,  but  in  other  cases  conclude  with  a  translation  of  the 
old  Latin  phrase,  Et  hoc  paratus,  etc.;  and  hence  the  rule  that 
an  affirmative  pleading  that  does  not  conclude  to  the  country 
must  conclude  with  a  verification,  (in) 

As  the  ancient  rule  requiring  an  offer  of  proof  extended 
only  to  affirmative  pleadings  (those  of  a  negative  kind  being  in 
general  incapable  of  proof),  so  the  rule  now  in  question  ap- 
plies to  the  former  only,  no  verification  being  in  general  neces- 
sary in  a  negative  pleading \(ri)  but  it  is  nevertheless  the 
practice  to  conclude  with  a  verification  all  negative,  as  well 
as  affirmative,  pleadings  that  do  not  conclude  to  the  country. 

RULE  IX. 

§  256.  In  all  pleadings  where  a  deed  is  alleged,  under 
which  the  party  claims  or  justifies,  profert  of  such  deed 
must  be  made,  (o) l — 

Where  any  party  pleads  a  deed,  and  claims  or  justifies  under 

(0  See  Appendix,  note  (85). 

(fc)  See  Appendix,  note  (86). 

(J)  Vide  supra,  p.  151. 

(m)  "  Every  plea  or  bar,  replication,  etc.,  must,  be  offered  to  be  proved  true  by  saying  in 
the  plea,  Et  hoc  paratus  est  verificare,  which  we  call  an  averment."  Finch,  Law,  359. 
This  gives  confirmation,  it  will  be  observed,  to  the  account  of  the  origin  of  this  rule  con- 
tained in  the  text. 

(w)  Oo.  Litt  303  a;  Millner  v.  Crowda.Vl,  1  Show.  838. 

(o)  Com.  Dig.,  Pleader  CO.  1);  Leyfleld's  Case,  10  Rep.  8S. 

1  See  supra,  pp.  159-160,  notes ;  Dugger  v.  Oglesby,  99  III  405. 


§  256.]  CERTAIN   MISCELLANEOUS   RULES.  A75 

it,  the  mention  of  the  instrument  is  accompanied  with  a 
formula  to  this  effect :  "  One  part  of  which  said  indenture  " 

(or  other  deed),  "  sealed  with  the  seal  of  the  said  ,  the 

said now  brings  here  into  court,  the  date  whereof 

is  the  day  and  year  aforesaid."  (p) 

This  formula  is  called  making  prof ert  of  the  deed.  Its  pres- 
ent practical  import  is  that  the  party  has  the  instrument 
ready  for  the  purpose  of  giving  oyer ;  (g)  and  at  the  time 
when  the  pleading  was  viva  voce  it  implied  an  actual  produc- 
tion of  the  instrument  in  open  court  for  the  same  purpose. 

The  rule,  in  general,  applies  to  deeds  only.  No  profert,  there- 
fore, is  necessary  of  any  written  agreement  or  other  instru- 
ment not  under  seal,  (r)  nor  of  any  instrument  which,  though 
under  seal,  does  not  fall  within  the  technical  definition  of  a 
deed  —  as,  for  example,  a  sealed  will  or  award,  (s)  This,  how- 
ever, is  subject  to  exception  in  the  case  of  letters  testamentary 
and  letters  of  administration ;  executors  and  administrators 
being  bound,  when  plaintiffs,  (f)  to  support  their  declaration 
by  making  profert  of  these  instruments. 

The  rule  applies  only  to  cases  where  there  is  occasion  to 
mention  the  deed  in  pleading.  "When  the  course  of  allegation 
is  not  such  as  to  lead  to  any  mention  of  the  deed,  a  profert  is 
not  necessary,  even  though  in  fact  it  may  be  the  foundation 
of  the  case  or  title  pleaded. 

The  rule  extends  only  to  cases  where  the  party  claims  under 
the  deed  or  justifies  under  it;  and  therefore,  when  the  deed  is 
mentioned  only  as  inducement  or  introduction  to  some  other 
matter  on  which  the  claim  or  justification  is  founded,  or  al- 
leged only  to  controvert  the  title  of  the  opposite  party,  and  not 
to  establish  title  in  the  party  pleading,  no  profert  is  neces- 
sary, (u) 

The  rule  is  confined,  too,  to  cases  where  the  party  relies  on 
the  direct  and  intrinsic  operation  of  the  deed,  (a?)  Thus,  in 

(p)  See  the  example  supra,  p.  159. 

(g)  As  to  oyer,  see  p.  203. 

(r)  Com.  Dig.,  Pleader  (O.  3);  Aylesbury  v.  Harvey,  8  Lev.  205. 

(»)  Com.  Dig.,  Pleader  (O.  3). 

(t)  But  semb.  that  they  are  not  bound  to  make  prof  ert  where  they  have  occasion  to  plead 
the  letters  testamentary,  etc.,  as  defendants.  See  Marsh  v.  Newman,  Popham,  163,  164, 
cites  36  Hen.  6,  36. 

(w)  Bellamy's  Case,  6  Rep.  38  a;  Holland  v.  Shelby,  Hob.  303;  Banffll  v.  Leigh,  8  T.  R.  571; 
Com.  Dig.,  Pleader  (O.  16). 

(x)  Banflll  v.  Leigh,  8  T.  R.  573;  Read  v.  Brookman,  3  T.  R.  ISd. 


476  CERTAIN   MISCELLANEOUS    RULES.  [§  256. 

pleading  a  conveyance  under  the  statute  of  uses,  it  is  not  nec- 
essary to  make  profert  of  the  lease  and  release,  because  it  is 
the  statute  that  gives  effect  to  the  conveyance,  and  the  deeds 
do  not  intrinsically  establish  the  title. 

Another  exception  to  the  rule  obtains  where  the  deed  is 
lost  or  destroyed  through  time  or  accident,  or  is  in  the  posses- 
sion of 'the  opposite  party,  (y)  These  circumstances  dispense 
with  the  necessity  of  a  profert,  and  the  formula  is  then  as 
follows:  "Which  said  writing  obligatory"  (or  other  deed) 
"  having  been  lost  by  lapse  of  time  "  (or,  "  destroyed  by  acci- 
dental fire,"  or,  "  being  in  the  possession  of  the  said  

"),  "the  said cannot  produce  the  same  to  the 

court  here."  (s)  l 

The  reason  assigned  for  the  rule  requiring  profert  is  that 
the  court  may  be  enabled,  by  inspection,  to  judge  of  the  suffi- 
ciency of  the  deed,  (a)  The  author,  however,  presumes  to 
question  whether  the  practice  of  making  profert  originated  in 
any  view  of  this  kind.  It  will  be  recollected  that  by  an  an- 
cient rule  all  affirmative  pleadings  were  formerly  required  to 
be  supported  by  an  offer  of  some  mode  of  proof,  (o)  As  the 
pleader,  therefore,  of  that  time  concluded  in  some  cases  by 
offering  to  prove  by  jury  or  by  record,  so  in  others  he  main- 
tained his  pleading  by  producing  a  deed  as  proof  of  the  case 
alleged.  In  so  doing  he  only  complied  with  the  rule  that  re- 
quired an  offer  of  proof.  Afterwards,  the  trial  by  jury  be- 
coming more  universally  prevalent,  it  was  often  applied  (as 
at  the  present  day)  to  determine  questions  arising  as  to  the 
genuineness  or  validity  of  the  deed  itself  so  produced ;  and 
from  this  time  a  deed  seems  to  have  been  no  longer  consid- 
ered as  a  method  of  proof,  distinct  and  independent  of  that 
by  jury.  Consequently  it  became  the  course  to  introduce,  as 
well  in  pleadings  where  the  party  relied  on  a  deed  as  in  other 

(y)  Read  v.  Brookman,  3  T.  11.  158. 
(z)  2  Chitty,  163. 

(a)  LeyfielcTs  Case,  10  Rep.  92  b. 

(b)  Vide  supra,  p.  473. 

1  If  the  deed  is  one  where  profert  99  HL  405 ;  Smith  v.  Woodward,  4 

is  necessary,  it  must  be  made  or  it  East,  586 ;  Powers  v.  Ware,  2  Pick, 

must  be  alleged  that  the  deed  is  lost ;  451 ;  Wofford  v.  Board,  etc.,  44  Bliss. 

if  profert  is  made,  proof  cannot  be  587.    See  Profert. 
received  of  loss.    Dugger  v.  Oglesby, 


§  257.]  CERTAIN   MISCELLANEOUS    RULES.  477 

cases,  the  common  verification  or  offer  to  prove  by  jury;  and 
the  true  object  of  the  profert  was  in  this  manner  not  only 
superseded,  but  forgotten,  though  in  practice  it  still  continued 
to  be  made,  (c) 

RULE  X. 

§  257,  All  pleadings  must  be  properly  entitled  of  the 
court  and  term,  (d) 1 — 

With  respect  to  the  title  of  the  court,  it  consists,  in  general,  of 
a  superscription  of  the  name  of  the  court,  thus:  "  In  the  king's 
bench,"  "in  the  common  pleas,"  or  "in  the  exchequer."  (e) 
But  in  a  declaration  by  bill,  in  the  king's  bench,  it  consists 
of  a  superscription  of  the  name  of  the  prothonotary.  (/") 

With  respect  to  the  title  of  the  term,  it  is  either  general, 
thus :  "  Trinity  term,  in  the  fourth  year  of  the  reign  of  King 
George  the  Fourth,"  (g)  or  special,  thus :  "  Monday  next,  after 
fifteen  days  ©f  the  Holy  Trinity,  in  the  fourth  year  of  the 
reign  of  King,  George  the  Fourth." 

Such  title  refers  to  the  time  when  the  party  is  supposed  to 
deliver  his  oral  allegation  in  open  court,  and  as  it  was  only  in 
term  time  that  the  court  anciently  sat  to  hear  the  pleading,  it 
is  therefore  always  of  a  term  that  the  pleadings  are  entitled, 
though  they  are  often  in  fact  filed  or  delivered  in  vacation  time. 
The  term  of  which  any  pleading  is  entitled  is  usually  that  in 
which  it  is  actually  filed  or  delivered ;  (h]  or,  where  this  takes 
place  in  vacation  time,  the  title  is  of  the  term  last  preceding. 

The  most  frequent  practice  is  to  entitle  generally  (accord- 
ing to  the  first  form  above  given).  But  it  is  to  be  observed 
that  a  pleading  so  entitled  is  by  construction  of  law  presumed, 
unless  proof  be  given  to  the  contrary,  to  have  been  pleaded 
on  the  first  day  of  the  term.  And  the  effect  of  this  is,  that  if 
a  general  title  be  used,  it  will  sometimes  occasion  an  apparent 

(c)  See  Appendix,  note  (87). 

(d)  1  Chitty,  261,  527,  528;  1  Arch.  72,  162;  Topping  v.  Frye,  1  Marsh.  341. 

(e)  1  Chitty,  262,  527;  Com.  Dig.,  Pleader  (C.  7).    See  the  examples  supra,  pp.  154-158,  etc. 
(/)  See  the  example  supra,  p.  175. 

(<7)  See  the  examples  supra,  p.  154,  etc. 

(h)  But  dilatory  pleas,  though  pleaded  in  a  term  subsequent  to  that  of  which  the  declara- 
tion is  entitled  (as  is  sometimes  the  case),  must  yet  always  be  entitled  of  the  same  term 
with  the  declaration,  unless  pleaded  with  a  special  or  general  special  imparlance.  See  this 
farther  explained,  1  Chitty,  422,  447. 


31 


i7S  CERTAIN   MISCELLANEOUS   EULES.  [§  258. 

objection.  Thus,  in  the  case  of  a  declaration  so  entitled,  it 
may  appear  in  evidence  on  the  trial  that  the  cause  of  action 
arose  in  the  course,  and  after  the  first  day  of,  terra  of  which  the 
declaration  is  entitled,  or  this  may  appear  on  the  face  of  the 
declaration  itself;  and  in  either  case  this  objection  would 
arise,  that  the  plaintiff  would  appear  to  have  declared  before 
his  cause  of  action  occurred;  whereas  the  cause  of  action 
ought  of  course  always  to  exist  at  the  time  the  action  is  com- 
menced. The  means  of  avoiding  this  difficulty  is  to  entitle 
specially  (according  to  the  second  form  above  given)  of  the 
particular  day  in  the  term  when  the  pleading  was  actually 
filed  or  delivered. 

RULE  XL 

§  258.  All  pleadings  ought  to  be  true,  (i) l  — 

While  this  rule  is  recognized,  it  is  at  the  same  time  to  be 
observed  that  in  general  there  is  no  means  of  enforcing  it  as 
a  rule  of  pleading,  because  in  general  there  is  no  way  of  prov- 
ing the  falsehood  of  an  allegation  till  issue  has  been  taken, 
and  trial  had,  upon  it.2 

It  may  also  be  observed  that,  notwithstanding  this  rule,  a 
practice  has  prevailed  of  what  is  called  sham  pleading,  that  is, 
pleading  for  the  mere  purpose  of  delay  a  matter  which  the 
pleader  knows  to  be  false.3  There  are  certain  pleas  of  this  kind, 
which,  in  consequence  of  their  having  been  long  and  frequently 
used  in  practice,  have  obtained  toleration  from  the  courts;  and 
though  discouraged,  are  tacitly  allowed;  as,  for  example,  the 
common  plea  of  judgment  recovered,  viz.,  that  judgment  has 
been  already  recovered  by  the  plaintiff  for  the  same  cause  of 
action.  But  in  other  cases  a  sham  plea,  when  ascertained  to 
be  so,  is  not  allowed.  It  is  true  that,  as  already  observed,  it 

tf)  Bac.  Ab.,  Pleas,  etc.  (Q.  4);  Sade  v.  Drake,  Hob.  295;  Smith  v.  Yeomans,  1  Saund.  316. 

1  Oakley  v.  Devoe,  12  Wend.  196.  involve  any  matter  of  substantial  liti- 
1  Tucker  v.  Ladd,  4  Cow.  47 ;  Brew-  gation.    The  defense  may  be  entirely 
ster  et  aL  v.  Holl,  6  Cow.  31 ;  Moyer  clear  in  form,  but  nevertheless  sham, 
v.  Brand,  102  Ind.  801.    See  Shaw's  for  the  reason  that  it  is  false,"  Brews- 
Pleading,  ter  &  Bostwick  v.  Hall,  6  Cow.  34 ; 
*  "A  defense  is  sham," said  the  court  Piercy  v.  Sabin,  10  Cal.  27,  70  Am. 
in  People  v.  McCumber,  18  N.  Y.  315,  Dec.  692;  Brown  v.  Porter,  7  Wash. 
72  Am.  Dec.  515,  "which  is  so  clearly  327. 
false  in  fact  that  it  does  not  in  reality 


§  259.]  CERTAIN   MISCELLANEOUS   RULES.  479 

cannot  in  general,  and  in  the  regular  course,  be  proved  that  a 
plea  is  false  till  the  trial ;  but  where  a  plea  is  not  in  the  usual 
and  tolerated  form  of  a  sham  plea,  and  the  matter  pleaded  is 
at  the  same  time  very  improbable,  and  presumably  intended 
as  a  plea  of  that  description,  the  court  will,  on  motion,  sup- 
ported by  affidavit  of  its  falsehood,  allow  judgment  to  be 
signed  by  the  plaintiff  as  for  want  of  plea,  and  make  the  de- 
fendant or  his  attorney  pay  the  costs.  (&) l  And  the  court 
has,  ki  all  cases,  power  to  punish  for  sham  pleading  and  has 
often  strongly  censured  the  practice.2 

Lastly,  there  is  an  exception  to  the  rule  in  question  in  the 
case  of  certain  fictions  established  in  pleading  for  the  con- 
venience of  justice.  Thus,  the  declaration  in  ejectment  always 
states  a  fictitious  demise,  made  by  the  real  claimant  to  a  ficti- 
tious plaintiff;  and  the  declaration  in  trover  uniformly  alleges, 
though  almost  always  contrary  to  the  fact,  that  the  defendant 
found  the  goods  in  respect  of  which  the  action  is  brought. 

[§  259.  Former  adjudication  —  Resadjudicata. —  The  object 
of  litigation  is  to-settle  and  finally  determine  disputed  matters, 
and  so  it  has  become  a  maxim  that  no  one  shall  be  twice  vexed 

(fc)  Thomas  v.  Vandermoolen,  2  Barn.  &  Aid.  197;  Fartley  v.  Godslake,  id.  199;  ShadweD 
•r.  Berthoud,  6  id.  750, 1;  Richley  v.  Proove,  1  Barn.  &  Cress.  286. 

1  See  Briggs  v.  Bergen,  23  N.  Y.  held  in  some  states,  that,  though  an 

163 ;  Butchers'  &  D.  Bank  v.  Jacobson,  answer  be  verified,  it  may  be  stricken 

22  How.  Pr.  473 ;  Fabbricotti  v.  Lau-  out    Dobson  v.  Hallowell,  53  Minn, 

nitz,  3  Sandf.  743 ;  Torrence  v.  Strong,  98 ;  Hay  ward  v.  Grant,   13  id.   135, 

4  Oreg.   39.    See   the   statutes    and  97  Am.   Dec,  228.     Contra,  Central 

codes  of  the  various  states.    At  com-  Nat  Bank  v.  Thein,  58  N.  Y.  St  R. 

mon  law  the  general  issue  could  not  239 ;   Schultze  v.  Rodewald,  1  Abb. 

be  struck  out  as  sham,  though  shown  N.  C.  365. 

by  affidavits  to  be  false.     See  Broome  2  The  terms  upon  which  the  answer 

Co.  Bank  v.  Lewis,  18  Wend.   565.  may  be  stricken  out  under  the  code 

By  the  codes  the  power  of  the  court  are  in  the  discretion  of  the  court 

to  strike  out  was  not  increased  (see  Frost  v.  Harford,  40  Cal.  166.     If  the 

however,  Coykendall  v.  Robinson,  39  defendant  commits  perjury  in  verify- 

N.  J.  L.  98),  and  the  power  will  be  ex-  ing  his  answer  he  may  be  prosecuted 

ercised  with  extreme    caution  and  therefor.    Wayland  v.  Tysen,  45  N. 

only  in    clear    cases.     Wayland    v.  Y.  281.    This  subject  is  discussed  at 

Tysen,  45  N.  Y.  281.    See,  also,  Gos-  length,  and  with  the  citation  of  many 

torfs  v.  Taafe,  18  Cal.  388 ;  Fay  v.  authorities,  in  a  note  to  the  case  of 

-Cobb,  51  id.  313 ;  Patrick  v.  McManus,  People  v.  McCumber,  72  Am.  Dec. 

14  Colo.  65,  2  Am.  St  Rep.  25i    It  is  515. 


4:80  CERTAIN   MISCELLANEOUS    RULES.  [§  259. 

for  the  same  cause;1  and  any  matter  once  litigated  he  is  es- 
topped from  again  contesting  in  court. 

The  rule  has  also  another  foundation  than  the  mere  interest 
of  the  parties,  viz.,  public  policy,  it  being  the  interest  of  the 
public  that  there  be  an  end  to  litigation;  and  hence  when  there 
has  been  a  full  and  fair  opportunity  to  be  heard  and  appeal,  it 
does  not  avail  to  urge  that  a  final  judgment  is  erroneous.2  The 
rule  is  sometimes  applied  under  the  designation  of  merger,  the 
rule  of  which  is,  that  whenever  a  cause  of  action  ("  transit  in 
rem  judicatam  ")  passes  into  judgment,  it  is  gone  forever,  being 
merged  in  a  higher  security.3 

The  rule  of  estoppel  by  adjudication  precludes  parties  and 
privies  from  contending  to  the  contrary  of  a  cause  of  action  or 
a  matter  of  law  or  a  matter  of  foot  which  has  been  once  actually 
put  in  issue  and  on  such  issue  is  decided.4  It  will  be  observed 
that  there  is  a  difference  suggested  above  between  a  cause  of 
action  determined  and  a  matter  of  fact  or  law  litigated,  and 
there  is  a  corresponding  difference  in  the  application  of  the 
rule  where  the  cause  of  action  actually  being  litigated  is  the 
same  cause  of  action,  or  where  in  a  suit  or  action  on  a  different 
cause  of  action  one  of  the  parties  claims  that  a  matter  of  law 
or  fact  of  which  his  adversary  attempts  to  avail  himself  was 
actually  litigated  in  some  former  action  or  proceeding.5 

In  the  former  situation  the  fact  of  allegation  and  adjudica- 
tion precludes  inquiry  not  only  as  to  facts  actually  brought  to 
the  attention  of  the  court,  but  all  material  facts  which  under 
the  issues  joined  might  have  been  litigated.6 

In  the  latter  situation,  i.  e.,  where  the  cause  of  action  is  dif- 
ferent, the  estoppel  extends  only  to  the  matters  directly  in  the 
issue  determined  and  collateral  facts  actually  litigated} 

It  is  affirmed  in  some  cases  that  there  is  a  difference  as  to 

JThe     subject    is    discussed     in  Miller,  41  Mich.  90.     Foreign  judg- 

Broom's  Maxims  under  the  maxim,  ments  are  generally  equally  respected. 

Nemo  debet  bis  vexam,  etc.,  and  an  Rapeljev.  Emory.  2DalL  51, 282;  Hyl- 

elaborate  presentation  sub.  Duchess  ton  v.  Guyot,  159  U.  S.  113. 

of  Kingston's  Case,  Smith's  Ld.  Cases.  5  Id. 

2  Broom,  Leg.  Max.  *329.  6ld. 

3  United  States  v.  Leffler,  11  Pet.  7Id.;  Wright  v.   Griffey,   147  111. 
100,  101.  496;  Hart  v.  Moulton,  104  Wis.  349; 

4  Cromwell  v.   County  of  Sac,  94  valuable  note  to  this  case,  76  Am.  St. 
U.  S.  351;  New  Orleans  v.  Citizens'  Rep.  881. 

Bank,   167  U.   S.  371;    Jacobson  v. 


§    259.]  CERTAIN   MISCELLANEOUS   EULES.  481 

the  effect  of  a  former  adjudication,  when  set  up  by  a  written 
pleading  in  bar  of  the  second  suit,  from  the  same  judgment 
when  introduced  as  evidence  of  an  estoppel  in  the  second  suit 
without  pleading;1  but  there  seems  to  be  no  good  reason  for 
such  a  distinction,  and  the  weight  of  authority  is  to  the  contrary. 

Where  the  causes  of  action  are  identical,  or  the  subject  of  liti- 
gation the  same,  the  effect  of  the  judgment  is  to  finally  close 
the  litigation  of  the  matter,  even  though  new  evidence  is  dis- 
covered or  the  clearest  errors  may  be  pointed  out ;  that  is,  the 
decision  is  a  finality  on  everything  which  might  have  been 
urged.2 

Where  the  causes  are  not  the  same,  the  judgment  is  conclu- 
sive only  upon  the  matters  litigated  and  decided;  and  although 
no  evidence  can41  be  heard  to  contradict  what  must  necessarily 
have  been  decided,  oral  evidence  is  admissible  to  show  what 
collateral  matter  was  actually  contested  and  decided.3 

Matters  confessed  or  not  put  in  issue  are  not  within  the  rule ; 4 
but  a  cause  of  action  or  defense  litigated  by  demurrer,  which 
confesses  the  facts  and  denies  the  right,  is  concluded  by  the 
judgment.5 

Parties  to  the  proceeding  and  privies  to  the  estate  or  prop- 
erty are  equally  bound  by  a  decision  in  an  action  or  proceed- 
ing in  personam.6 

Proceedings  in  rem,  because  they  act  upon  the  subject  in- 
volved, are  necessarily  given  a  wider  effect  and  bind  the  world.7 

Pleading  a  former  adjudication  is  then  necessary  or  advis- 
able according  to  the  situation  in  which  the  parties  are  placed, 
or  according  to  the  view  of  the  tribunal  of  last  resort  in  the 
locality  where  the  suit  is  pending.  Where  it  is  advisable  to 
plead  the  former  decision,  it  must  be  done  by  alleging  in  sub- 
stance or  effect  the  whole  record,  showing  that  the  matter  was 
actually  or  necessarily  included  in  the  decision.] 

1  Chicago  v.  Cameron,  120  111.  447.  persons  may  be  affected,  their  inter- 

2  Hart  v.  Moulton,  supra.  ests  being  represented.  See  McCamp- 

3  Cromwell  v.  County  of  Sac.  supra,  bell  v.  Mason,  151  111.  500;  Loring  v. 

4  Jacobson  v.  Miller,  41  Mich.  90.  Hildreth,  170  Mass.  328.    The  bar  ex- 
Decrees  by  consent  are  not  litigated  tends  to  all  consenting  persons  on 
matters,  and  do  not  constitute  res  whose  behalf  or  in  whose  interest 
adjudicata.    Farwell  v.  Great  W.  Ry.  the  litigation  is  conducted.    Bennett 
Co.,  161  111.  600.  v.  Star  Mining  Co.,  119  111.  14. 

8  Valandingham  v.  Ryan,  17  111.  25.        ^Rapalje  y.  Emory,  2  Dall.  51,  232. 
6  Hart  v.  Moultou,  supra.     Unborn 


CHAPTER  XIY. 

CONCLUSION. 

§  260.  Concluding  remarks  on  the  merits  of  the  system  of 
pleading. —  To  the  view  that  has  been  taken  in  this  work  of 
the  principles  of  the  system  of  pleading  it  may  be  useful  to  sub- 
join a  few  remarks  on  the  merits  of  that  system. 

\TTie  production  of  definite  issues,  peculiar  to  the  English  law, 
and  a  necessary  adjunct  of  trial  fry  jury.'] —  "When  compared 
with  other  styles  of  proceeding  it  has  been  shown  to  possess 
this  characteristic  peculiarity  —  that  it  produces  an  issue; l  that 
is,  it. obliges  the  parties  so  to  plead  as  to  develop,  by  the  effect 
of  their  own  allegations,  some  particular  question  as  the  sub- 
ject for  decision  in  the  cause.  "With  respect  to  the  degree  of 
particularity  with  which  such  question  or  issue  is  developed, 
we  have  seen,  in  the  first  place,  that  it  is  always  distinctly 
defined  as  consisting  either  of  fact  or  law:  because,  in  the  for- 
mer case,  it  arises  on  a  traverse;  in  the  latter,  it  presents  it- 
self in  the  very  different  shape  of  a  demurrer.  But,  independ- 
ently of  this  distinction,  it  will  be  remembered  that  the  issue 
produced  is  required  to  be  certain,  or  specific.  It  is  true 
that  some  issues  are  framed  with  much  less  certainty  than 
others.  Thus  the  general  issue,  in  assumpsit  and  other  ac- 
tions of  trespass  on  the  case,  presents  a  question  abundantly 
more  general  than  that  on  the  execution  of  a  release  by  du- 
ress, which  occurred,  by  way  of  example,  in  a  former  part  of 
this  work;  and  with  respect  to  the  whole  class  of  general 
issues,  it  will  be  observed  that  they  raise  questions  much  less 
circumstantial  than  those  which  occur  after  special  pleas. 
Still,  however,  it  is  the  universal  property  of  all  issues  to 
define  the  question  for  decision  in  a  shape  more  or  less  spe- 
cific. Even  the  general  issue  in  assumpsit,  which  is  one  of 
the  most  indefinite  in  its  nature,  raises  this  question,  viz., 

1  Civil  law  and  equity  procedure  contrasted.  Langdell's  Summary  of  Eq. 
PI.,  g  34.  Code  and  common  law  contrasted.  Ante,  pp.  4-30. 


§  200.]  CONCLUSION.  483 

whether  the  defendant  be  liable  to  the  demand  circumstan- 
tially stated  in  the  declaration,  and  thus  presents  to  the  mind 
a  distinct  and  practical,  though  general,  idea  of  the  matter  to 
be  tried. 

That  prior  to  the  institution  of  any  proceeding  for  the  pur- 
pose of  decision  the  question  to  be  decided  should  be  by  some 
means  publicly  adjusted  as  consisting  either  of  fact  or  law, 
and  this,  too,  with  some  certainty  or  specification  of  circum- 
stance, is  evidentty  required  by  the  nature  of  the  English 
common-law  system  of  jurisprudence.  For,  by  the  general 
principles  of  that  system,  questions  of  law  are  determinable 
exclusively  by  the  judges,  while  questions  of  fact  (some  few 
instances  excepted)  can  be  decided  only  by  a  jury;  and  in 
those  excepted  cases  are  referred  to  other  appropriate  modes 
of  trial.  Unless,  therefore,  some  public  adjustment  of  the  kind 
above  described  took  place  between  the  parties,  they  would 
be  unable,  after  the  pleading  had  terminated,  to  pursue  far- 
ther their  litigation.  For  they  might  disagree  upon  the  very 
form  of  the  proceeding  by  which  the  decision  was  to  be  ob- 
tained ;  or  if  they  both  took  the  same  view  of  the  general 
nature  of  the  question,  so  that  they  both  referred  their  con- 
troversy to  the  same  method  of  determination  —  for  example, 
trial  by  jury, —  they  might  yet  differ  as  to  the  shape  of  the 
question  to  be  referred. 

A  public  adjustment  of  the  point  for  decision,  of  the  specific 
kind  above  described,  being  for  this  reason  necessary,  there 
are  two  ways  in  which  it  might  conceivably  be  affected :  either 
by  a  retrospective  selection  from  the  pleading  or  by  the  mere 
operation  of  the  pleading  itself.  The  law  of  England,  in  pro- 
ducing an  issue,  pursues  the  latter  method.  For,  as  has  been 
shown,  the  alternate  allegations  are  so  managed  that,  by  the 
natural  result  of  that  contention,  the  undisputed  and  immate- 
rial matter  is  constantly  thrown  off  until  the  parties  arrive  at 
demurrer  or  traverse ;  upon  which  a  tender  of  issue  takes  place 
on  the  one  hand,  and  an  acceptance  of  it  on  the  other ;  and 
the  question  involved  in  the  demurrer  or  traverse  is  thus  mut- 
ually referred  to  decision. 

The  production  of  an  issue,  when  thus  defined  and  explained, 
appears  to  be  attended  with  considerable  advantage  in  the 
administration  of  justice;  for  the  better  comprehension  of 


CONCLUSION.  |~§  2GO. 

which  it  will  be  useful  to  advert  to  those  styles  of  juridical 
proceeding  in  which  no  issue  is  produced. 

In  almost  every  plan  of  judicature  with  which  we  are  ac- 
quainted except  that  of  the  common  law  of  England,  the 
course  of  proceeding  is  to  make  no  public  adjustment  what- 
ever of  the  precise  question  for  decision.  For,  as  all  matters, 
whether  of  law  or  fact,  are  decided  by  the  judge,  and  by  him 
alone,  upon  proofs  adduced  on  either  side  by  the  parties,  the 
necessity  upon  which  that  practice  has  been  shown  to  be 
founded  in  the  English  common-law  system  does  not  arise. 
Consequently,  the  mutual  allegations  are  allowed  to  be  made 
at  large,  as  it  may  be  called  —  that  is,  with  no  view  to  the  ex- 
position of  the  particular  question  in  the  cause  by  the  effect 
of  the  pleading  itself.  The  litigants,  indeed,  before  they  pro- 
ceed to  proof,  must  explore  the  particular  subject  in  contro- 
versy, in  order  to  ascertain  whether  any  proof  be  required, 
and  to  guide  them  to  the  points  to  which  their  proof  is  to  be 
directed.  And  upon  the  hearing  of  the  cause  the  judge  must 
of  course  also  ascertain,  for  his  own  information,  the  precise 
point  to  be  decided,  and  consider  in  what  manner  it  is  met  by 
the  evidence.  But  in  these  proceedings,  neither  the  court  nor 
the  parties  have  any  public  exposition  of  the  point  in  contro- 
versy to  guide  them;  and  they  judge  of  it,  as  a  matter  of  pri- 
vate discretion,  upon  retrospective  examination  of  the  plead- 
ings, (d) 

The  Scottish  method  of  ascertaining  the  issue. —  This,  as  al- 
ready stated,  is  the  almost  universal  method;  but  there  is 
another  which  also  requires  notice,  viz. :  that  which  at  pres- 
ent prevails  in  the  Scottish  judicature.  Since  the  trial  by 
jury  in  civil  causes  has  been  engrafted  upon  the  juridical 
system  of  Scotland,  it  has  of  course  been  found  necessary  to 
adjust  and  settle  publicly  between  the  parties  the  particular 
question  or  questions  on  which  the  decision  of  the  jury  is 
to  be  taken.  But  instead  of  eliciting  such  question  (called, 
by  analogy  to  the  law  of  England,  the  issue)  by  the  mere 
effect  and  operation  of  the  pleading  itself,  according  to  the 

(d)  The  practice  of  the  courts  of  equity  in  this  country  forms  no  exception  to  this  gen- 
eral statement.  For,  though  the  common  replication  offers  a  formal  contradiction  to  the 
answer,— a  contradiction  which  imitates,  in  some  measure,  the  form  of  an  issue  in  the 
common  law,  and  borrows  its  name, —  yet,  in  substantive  effect,  the  two  results  are  quite 
different;  for  the  contradiction  to  which  the  name  of  an  issue  is  thus  given  hi  the  equity 
pleading  is  of  the  most  general  and  indefinite  kind,  and  develops  no  particular  question 
as  the  subject  for  decision  in  the  cause. 


§  260.]  CONCLUSION.  485 

practice  of  the  English  courts,  the  course  taken  has  been  to 
adjust  or  settle  the  issue  retrospectively  from  the  allegations, 
by  an  act  of  court;  and  these  allegations  have  consequently 
continued  to  be  made  at  large,  according  to  the  definition  of 
that  term  already  given,  (e) 

The  English  common-law  method,  as  compared  with  either 
of  those  that  have  been  just  described,  possesses  this  advan- 
tage :  that  the  undisputed  or  immaterial  matter  which  every 
controversy  more  or  less  involves  is  cleared  away  by  the 
effect  of  the  pleading  itself;  and  therefore,  when  the  alle- 
gations are  finished,  the  essential  matter  for  decision  neces- 
sarily appears.  But  under  the  rival  plans  of  proceeding  by 
which  the  statements  are  allowed  to  be  made  at  large,  it  be- 
comes necessary,  when  the  pleading  is  over,  to  analyze  the 
whole  mass  of  allegation,  and  to  effect  for  the  first  time  the 
separation  of  the  undisputed  and  immaterial  matter  in  order 
to  arrive  at  the  essential  question.  This  operation  will  be  at- 
tended with  more  or  less  difficulty,  according  to  the  degree 
of  vagueness  or  prolixity  in  which  the  pleaders  have  been 
allowed  to  indulge;  but  where  the  allegations  have  not  been 
conducted  upon  the  principle  of  coming  to  issue,  or,  in  other 
words,  have  been  made  at  large,  it  follows  from  that  very 
quality  that  their  closeness  and  precision  can  never  have  been 
such  as  to  preclude  the  exercise  of  any  discretion  in  extract- 
ing from  them  the  true  question  in  controversy,  for  this  would 
amount  to  the  production  of  an  issue.  Therefore  it  will  always 
be  in  some  measure  doubtful,  or  a  point  for  consideration,  to 
what  extent  and  in  what  exact  sense  the  allegations  on  one 
side  are  disputed  on  the  other,  and  also  to  what  extent  the 
law  relied  upon  by  one  of  the  parties  is  controverted  by  his 
adversary.  And  this  difficulty,  while  thus  inherent  in  the 
mode  of  proceeding,  will  be  often  aggravated  and  present 
itself  in  a  more  serious  form  from  the  natural  tendency  of 
judicial  statements,  when  made  at  large,  to  the  faults  of  vague- 
ness and  prolixity.  For  where  the  pleaders  state  their  cases 

(«)  It  is  to  be  understood,  however,  that  the  issues  are  not  extracted  from  the  pleadinga 
in  the  full  latitude  of  allegation  sometimes  allowed  to  them  by  the  Scottish  law,  but  from 
allegations  of  a  more  succinct  and  specific  character,  called  condescendences  and  answers; 
which  the  parties  are  directed  to  give  in,  as  the  materials  from  which  the  court  are  to  ad- 
just the  issue.  Yet,  even  these  condescendences  and  answers  are  pleadings  at  large,  in 
the  sense  in  which  the  author  -uses  that  term;  for  they  do  not  develop  the  point  in  con- 
troversy by  their  intrinsic  operation. 


486  CONCLUSION.  [§  260. 

in  order  to  present  the  materials  from  which  the  mind  of  the 
judge  is  afterwards  to  inform  itself  of  the  point  in  controversy, 
they  will  of  course  be  led  to  indulge  in  such  amplification  on 
either  side  as  may  put  the  case  of  the  particular  party  in  the 
fullest  and  most  advantageous  light,  and  to  propound  the  facts 
in  such  form  as  may  be  thought  most  impressive  or  convenient, 
though  at  the  expense  of  clearness  or  precision.  On  the  other 
hand,  it  is  evident  that  upon  the  English  common-law  method 
the  pleaders,  having  no  object  but  to  produce  the  issue,  are 
without  the  least  inducement  either  to  an  uncertain  or  a  too 
copious  manner  of  statement,  and  on  the  contrary  have  a 
mutual  interest  to  effect  the  result  at  which  they  aim  in  the 
shortest  and  most  direct  manner. 

The  difficulty  that  must  thus  be  always,  in  some  measure, 
found  under  the  method  of  pleading  at  large,  in  ascertaining 
the  precise  extent  of  the  mutual  admissions  of  fact  or  law,  is 
attended  with  this  obvious  inconvenience:  that  a  party  may 
be  led  to  proceed  to  proof  or  trial  upon  matters  not  disputed 
or  not  considered  as  material  to  be  disputed  on  the  other  side, 
or  to  omit  the  proof  or  trial  of  matters  which  are  meant  to 
be  disputed  and  which  are  in  fact  essential  to  the  final  deter- 
mination of  the  cause.  The  judge  may  consequently  find,  upon 
examination  of  the  whole  process,  and  hearing  the  farther  al- 
legations and  arguments  of  the  parties,  that  the  investigation 
of  fact  has  either  been  redundant,  and  therefore  attended  with 
useless  expense  and  delay,  or  defective,  so  as  not  to  present  him 
with  the  materials  on  which  he  can  properly  adjudicate.  On 
the  other  hand,  these  evils  are  unknown  to  the  English  system 
of  judicature  except  in  a  very  partial  degree ;  and  to  that  de- 
gree they  arise,  as  will  be  afterwards  explained,  in  consequence 
of  the  latitude  of  some  of  the  general  issues ;  in  other  words, 
from  a  partial  abandonment  of  its  own  peculiar  principle. 

The  advantages  and  defects  of  the  common-law  system. —  This 
system  of  pleading  is  not  only  distinguished  from  other  meth- 
ods of  judicial  allegation  by  its  production  of  an  issue,  but  is 
in  this  respect  advantageously  distinguished  from  them,  and 
derives,  from  this  singularity  of  proceeding,  considerable  pro- 
tection from  inconveniences  to  which  they  are  severally  subject. 

It  also  appears  to  deserve  high  praise,  in  respect  of  such  of 
its  rules  as  are  classed  in  this  work,  by  their  tendency  to  pre- 


§  260.]  CONCLUSION.  487 

vent  obscurity,  or  confusion,  prolixity,  or  delay.  Here,  indeed, 
the  objects  pursued  are  not  peculiar  to  the  English  system ; 
for  the  avoidance  of  such  faults  is  of  course,  in  some  measure, 
the  aim  of  every  enlightened  plan  of  judicature.  But,  in  gen- 
eral, there  is  either  a  want  of  regulation  to  enforce  the  ob- 
ject, or  the  regulation  is  found  to  be  ineffectual.  On  the 
contrary,  the  system  of  pleading  has  various  rules  specifically 
designed  to  promote  precision  and  brevity  in  the  method  of 
allegation,  rules  exclusively  its  own,  and  extremely  strict  and 
efficacious  in  their  character.  Accordingly,  it  has  ever  been 
proverbially  famous  for  the  former  of  these  qualities;  and  in 
modern  times,  and  under  the  influence  of  enlightened  judges, 
the  principle  of  avoiding  the  introduction  of  unnecessary  mat- 
ter has  been  so  rigorously  applied,  and  the  cases  of  unnecessary 
allegation  have  been  so  well  defined  and  understood  (A)  as 
very  considerably  to  remove  its  not  less  ancient  and  notorious 
reproach  of  amplification  and  prolixity.1 

While  the  system  of  pleading  is  thus,  in  general,  distin- 
guished for  the  excellence  of  its  structure,  it  cannot  be  denied 
that  there  are  points  on  which  its  merit  is  questionable. 

1.  There  is  something  not  satisfactory  in  its  tendency  to 
decide  the  cause  upon  points  of  mere  form. 

It  will  be  observed  that,  in  general,  whenever  a  demurrer 
occurs  in  respect  of  insufficiency  in  the  manner  of  statement, 
and  not  for  insufficiency  in  substance,  or  where  an  issue,  either 
in  fact  or  law,  is  joined  upon  a  plea  in  abatement,  the  issue 
joined  in  such  cases  involves  a  question  of  form  only.  And 
as  the  issue,  whatever  be  its  nature,  is  in  general  decisive 
of  the  fate  of  the  cause,  (i)  it  follows  that  where  issue  is  so 
joined,  the  action  must  commonly  be  decided  upon  a  point  of 
form  and  not  upon  the  merits  of  the  case  —  a  result  that  seems 
inconsistent  with  sound  justice.  Thus,  if  the  plaintiff  in  an 
action  of  trespass  should  happen  to  omit  in  his  declaration  to 
state  the  day  or  time  at  which  the  trespass  was  committed, 
and  the  defendant  should  demur  specially  for  this  omission, 
and  the  issue  joined  on  this  demurrer  should  be  decided  (as  it 

(A)  This  is  by  the  effect  of  the  rules  tending  to  limit  or  restrain  the  degree  of  certainty 
in  allegation.     Vide  supra,  pp  409,  430. 
(0  Vide  supra,  p  236. 

1  See  remarks  of  Justice  Grier,  McFall  v.  Ramsay,  20  How.  427. 


CONCLUSION.  [§  260. 

would  be)  in  favor  of  the  defendant,  by  the  regular  conse- 
quence judgment  would  be  also  given  for  the  defendant,  and 
the  plaintiff's  claim  would  be  defeated  by  the  omission  of  a 
few  words  in  his  declaration.  Yet  we  have  seen  that  the 
time  if  alleged  need  not  have  been  proved  as  laid,  and  its 
omission,  therefore,  is  a  fault  of  the  most  strictly  formal  kind. 
Again,  if  the  defendant  should  plead  in  abatement  that  he  is 
sued  by  a  wrong  Christian  name,  and  the  plaintiff  should 
choose  to  take  issue  in  fact  upon  the  plea  and  go  to  trial,  the 
verdict,  if  given  for  the  plaintiff,  entitles  him  to  judgment  quod 
recuperet,  and  he  consequently  recovers  his  demand.  (I)  On  the 
other  hand,  if  given  for  the  defendant,  it  is  followed  by  judg- 
ment of  lreve  (or  billa)  cassetur,  and  thus  the  action  in  one 
case,  and  in  the  other  both  the  action  and  the  demand  itself, 
are  disposed  of  upon  a  mere  question  relating  to  the  Christian 
name  of  the  defendant. 

But  if  any  objection  attach  on  this  ground  to  the  system  of 
pleading,  its  weight,  at  least,  is  much  diminished  by  the  liber- 
ality with  which  amendments  are  allowed  in  the  modern  prac- 
tice. Thus,  in  the  case  of  demurrer  above  supposed,  if  the 
plaintiff  should  imprudently  join  in  demurrer  (instead  of  ap- 
plying, as  he  ought,  for  leave  to  amend),  the  court  would  never- 
theless after  joinder  in  demurrer,  and  even  after  the  demurrer 
had  come  on  to  be  argued,  allow  him  to  amend,  and  the  only 
inconvenience  that  he  would  suffer  would  be  the  payment  of 
costs.  The  second  case,  indeed,  viz. :  that  in  which  an  issue 
in  fact  is  joined  upon  a  plea  in  abatement,  is  such  as  would  not 
allow  of  amendment  unless  applied  for  before  the  cause  had 
come  on  for  trial.  But  even  in  this  instance  it  is  not  prob- 
able that  any  hardship  or  injustice  would  arise  by  the  final 
determination  of  the  cause  upon  the  point  of  form,  for  if  the 
unsuccessful  party  had  had  any  substantial  case  upon  the 
merits  he  would  presumably  have  applied  to  amend  without 
hazarding  the  trial. 

2.  Again  some  doubt  may  reasonably  be  felt  with  respect  to 
the  advantage  of  that  part  of  the  system  which  relates  to  the 
singleness  of  the  issue.  Provided  only  that  a  party  be  restrained 

(f)  Vide  supra,  p.  237;,  2  Wils.  867.  The  case  is  otherwise,  however,  If  the  plaintiff  suc- 
ceeds on  an  issue  in  law  on  a  plea  in  abatement,  for  there  the  judgment  is  respondent 
ouster  only.  Ibid. 


§  200.]  CONCLUSION.  489 

from  raising  issues  inconsistent  with  each  other,  or  such  as  he 
knows  to  be  without  foundation  in  fact,  it  may  be  questioned 
whether  any  sufficient  considerations  of  utility  or  convenience 
can  be  urged  at  the  present  day  in  favor  of  the  object  of  single- 
ness.1 At  all  events  some  presumption  must  arise  against  the 
value  of  this  object  in  modern  pleading  when  we  recollect  that 
the  long-permitted  use  of  several  counts  in  respect  of  the  same 
cause  of  action,  and  the  provision  of  the  statute  of  Anne  allow- 
ing the  use  of  several  pleas,  have  declared  it  as  the  sense  both 
of  the  bench  and  the  legislature  that,  if  the  original  principle 
deserved  to  be  retained,  it  required  at  least  material  mitiga- 
tion. However,  it  is  clear  that  the  principle  of  singleness  is 
so  far,  at  least,  a  right  and  valuable  one,  as  it  may  tend  to 
prevent  the  parties  from  offering  inconsistent  allegations,  or 
such  as  they  may  know  to  be  false.  For,  though  the  interests 
of  justice  seem  to  reqnire  in  many  cases  the  allowance  of  sev- 
eral counts  or  pleas  in  respect  of  the  same  demand,  they  are, 
on  the  other  hand,  directly  opposed  to  the  allowance  of  re- 
pugnant ones;  and  where  one  of  the  matters  alleged  must 
evidently  be  false,  the  party  should  of  course  be  obliged  to 
make  his  election  between  them ;  and  so  in  allowing  a  party 
to  make  different  allegations,  he  ought,  if  possible,  to  be  ex- 
cluded from  such  as  (whether  inconsistent  or  not  with  what 
has  been  previously  pleaded)  he  must  know  to  be  without 
foundation  in  fact.  Yet  these,  which  are  perhaps  the  only 
beneficial  results  that  can  flow  from  the  principle  of  single- 
ness, the  present  state  of  the  law  against  duplicity  unfort- 
unately fails  to  produce.  For,  first,  a  plaintiff  is  at  liberty 
to  adopt  as  many  counts  as  he  pleases,  however  apparent  it 
may  be  that  the  cases  which  they  respectively  state  cannot 
all  be  true.  So  a  defendant  is  allowed,  under  the  provision  of 
the  statute  of  Anne,  to  plead,  with  scarcely  any  exception, 
matters  directly  inconsistent  with  each  other;  for  example,  he 
may  plead,  in  trespass  for  assault  and  battery,  not  guilty 
(namely,  that  he  did  not  commit  the  trespasses),  and  also  son 
assault  demesne,  viz.:  that  he  committed  them  in  self-de- 
fense, (n)  or,  in  debt  on  bond,  non  est  factum  (viz. :  that  he 

(n)  1  Arch.  236. 

1  This  defect  is  obviated  by  allow-  lowance  of  several  pleas.  See  remarks 

ing  several  causes  to  be  joined  or  of  court  in  Manders  v.  Craft,  3  Colo, 

stated  in  several  counts,  and  the  al-  App.  236. 


490  CONCLUSION.  [§  260. 

did  not  execute  the  deed),  and  also  that  he  executed  it  under 
duress  of  imprisonment.  (0)  Again,  a  party  is  not  restrained 
by  the  present  system  from  adding  to  his  true  case  another 
that,  though  consistent  with  it,  he  knows  to  be  false.  And 
accordingly  a  defendant  at  the  same  time  that  he  pleads  a 
special  plea  founded  on  his  real  matter  of  defense  almost  al- 
ways resorts  also  to  the  general  issue  or  some  other  plea  by 
way  of  traverse,  in  order  to  put  the  plaintiff  to  the  proof  of 
his  declaration,  without  having,  in  truth,  the  least  reason  to 
deny  the  allegations  which  it  contains.  The  statute  of  Anne, 
indeed,  provides  a  check  against  this  by  a  provision  of  which 
the  general  effect  is  as  follows:  that  where  the  defendant  has 
pleaded  several  pleas  and  the  issue  upon  any  one  of  them  is 
found  for  the  plaintiff,  the  court  may  give  the  plaintiff  the 
costs  of  every  such  issue,  unless  the  judge  of  nisi  prius  shall 
certify  that  the  defendant  had  probable  cause  to  plead  the 
matter  found  against  him.  But  the  construction  and  effect 
given  to  this  provision  in  practice  seem  to  have  rendered  it 
inadequate  to  the  object  which  it  contemplates,  (p) 

3.  Another  feature  of  doubtful  character  in  the  system  of 
pleading  is  the  wide  effect  which  belongs,  in  certain  actions, 
to  the  general  issue.  In  debt  on  simple  contract  —  in  assump- 
sit,  and  trespass  on  the  case,  in  general  —  the  general  issue 
embraces  almost  every  ground  of  defense  to  which  the  de- 
fendant at  the  trial  may  choose  to  resort;  the  questions 
offered  by  these  issues  being  in  effect  nearly  these:  whether 
the  defendant  be  indebted  to  the  plaintiff,  as  alleged  in  the 
declaration,  or  whether  he  be  liable  to  the  plaintiff's  demand, 
as  set  forth  in  the  declaration.  Now,  these  questions  are  so 
general  and  vague  as  to  produce,  but  in  a  limited  and  inferior 
degree,  the  advantages  which  attend  the  production  of  a 
more  strict  and  special  issue.  For,  first,  they  do  not  fully 
effect  the  separation  of  matter  of  fact  from  matter  of  law. 
To  understand  this  it  must  be  considered  that  though  the  par- 
ties cannot  go  to  trial  on  a  mere  question  of  law  (a  traverse 
of  matter  of  law  not  being  allowable),  yet  it  is,  in  the  nature 
of  many  issues  in  fact,  to  involve  some  subordinate  legal  ques- 
tion, the  decision  of  which  is  essential  to  the  decision  of  the 

(o)  Ibid.  And  see  other  instances  open  in  some  measure  to  the  same  objection  of  in- 
•oonsistency,  supra,  p  382. 

(p)  See  11  East,  263;  2  Burr.  763. 


§  260.]  CONCLUSION.  .        491 

issue.  And  the  wider  and  more  general  the  form  of  the  issue 
the  more  likely  it  is  to  comprise  these  subordinate  questions 
of  law.  For  example,  in  an  action  of  debt  on  simple  con- 
tract, or  assumpsit,  if  the  defendant  rely  on  a  release  executed 
by  the  plaintiff,  he  may  give  this  in  evidence  under  the  gen- 
eral issue  (nil  debet,  or  non  assumpsit\  because  it  tends  to 
show  that  he  is  not  indebted,  or  is  not  liable  as  alleged,  and 
if  the  plaintiff's  answer  to  the  release  be  that  it  was  obtained 
by  duress,  this  will  of  course  be  also  offered  in  evidence  under 
the  same  issue.  Upon  this  point  of  duress  two  questions  may 
be  supposed  to  arise :  first,  whether  the  execution  of  the  deed 
under  duress  would  defeat  the  effect  of  the  deed ;  secondly, 
whether  the  deed  were  in  fact  executed  under  duress. 
Before  the  jury  can  find  a  verdict  either  for  the  plaintiff  or 
defendant,  both  these  questions  must  be  disposed  of.  But 
the  first  is  a  question  of  mere  law,  and  their  decision  upon  it 
must  be  guided  by  the  direction  of  the  judge.  Here,  then,  is 
a  question  of  law  involved  under  the  issue  in  fact.  Now  if, 
on  the  other  hand,  a  form  of  action  be  supposed  in  which  the 
pleading  is  more  special,  and  the  general  issue  less  compre- 
hensive—  for  example,  the  action  of  covenant, —  this  very  same 
question  will  be  distinctly  developed  as  a  point  of  law  upon 
the  pleading,  by  way  of  demurrer.  For  the  defendant  can- 
not, under  non  est  faetum  (which  is  the  general  issue  in  that 
action),  set  up  the  release,  but  must  plead  it  specially,  and  the 
plaintiff  must  consequently  plead  the  duress  in  reply;  and 
then,  if  the  defendant  disputes  the  legal  consequence  of  the 
duress,  his  course  is  to  demur  to  the  replication.  Of  such  de- 
murrer, occurring  in  the  very  case  here  imagined,  the  reader 
has  already  seen  an  example  in  the  course  of  this  work,  and 
to  this  he  may  be  again  referred  for  farther  illustration. 

It  thus  appears,  then,  that  it  is  the  effect  of  the  wider  gen- 
eral issues  to  render  less  complete  than  it  otherwise  would  be, 
the  separation  of  fact  from  law.  And  the  inconvenience  of 
this  is  felt  in  the  great  frequency  with  which  difficult  legal 
questions  arise  for  the  opinion  of  the  judge  at  nisiprius,  the 
numerous  motions  for  new  trials  consequently  made  in  the 
court  in  bank  to  obtain  a  revision  of  such  opinions,  and  the 
delay  and  expense  necessarily  attendant  on  a  preceding  of  this 
kind  when  compared  with  the  regular  method  of  demurrer. 

Again,  it  is  an  inconvenience  arising  from  general  issues  of 


492  CONCLUSION.  [§  260. 

this  description  that  they  tend  to  conceal  from  each  party  the 
case  meant  to  be  made  by  his  adversary  at  the  trial.  Thus, 
in  the  instance  above  supposed,  the  plaintiff  would  have  no 
notice  from  the  nature  of  the  issue,  nil  debet  or  non  assumpsit, 
that  the  defendant  meant  to  set  up  a  release ;  nor  would  the 
defendant,  on  the  other  hand,  have  any  intimation  that  it  was 
to  be  met  by  the  allegation  of  duress.  And  thus  is  defeated, 
in  some  measure,  another  of  the  advantages  otherwise  attend- 
ant on  the  production  of  an  issue,  viz. :  that  of  apprising  the 
parties  of  the  precise  nature  of  the  question  to  be  tried,  and 
enabling  them  to  shape  their  proofs  without  danger  of  redun- 
dance on  the  one  hand  or  deficiency  on  the  other.1 

4.  Another  objection  to  the  system  of  pleading,  and  one 
more  formidable,  perhaps,  than  any  that  has  been  above  sug- 
gested, is  to  be  found  in  the  excessive  subtlety  and  needless 
precision  by  which  some  parts  of  it  are  characterized.  The 
existence  of  these  faults  cannot  fairly  be  denied,  nor  that  they 
bring  upon  suitors  the  frequent  necessity  of  expensive  amend- 
ments, and  sometimes  occasion  an  absolute  failure  of  justice 
upon  points  of  mere  form.  Yet  is  their  inconvenience  less 
severely  felt  in  practice  at  the  present  day  than  a  mere  theo- 
retical acquaintance  with  the  subject  would  lead  the  student 
to  suppose.  Many  of  the  intricacies  and  mysteries  of  plead- 
ing—  those,  for  example,  which  relate  to  color  and  special 
traverses,  long  discouraged  by  the  courts  — are  rapidly  falling 
into  disuse,  and  on  the  whole  have  but  little  effect  in  the 
actual  operation  of  the  system ;  and  with  respect  to  the  science 
in  general,  it  may  be  remarked  that  its  increasing  cultivation 
has  made  the  course  of  practice  more  uniformly  correct  than 
in  former  times  and  the  occasions  for  formal  objections  con- 
siderably less  frequent. 

Such  are  the  principal  observations  which  a  long  practical 
acquaintance  with  pleading  has  suggested  to  the  author  on 
the  merits  of  that  celebrated  system  of  allegation.  Founded 
as  they  are  on  experience,  he  does  not  hesitate  to  offer  them 
to  the  public,  though  the  limits  which  he  has  prescribed  to 
himself  in  this  part  of  the  work  have  obliged  him  to  condense 
them  into  a  form  more  summary  than  befits  the  interest,  the 
importance,  and  the  difficulty  of  the  subject. 

1  The  bill  of  particulars  in  a  large  measure  obviates  this  defect 


APPENDIX. 


[EDITOR'S  NOTE  A.     See  pp.  38-43. 

Joinder  of  parties. —  The  opinion  of  Lord  Justice  Bowen  in 
the  late  case  of  Hannay  v.  Smurthwait,  69  L.  T.  E-ep.  677,  is 
valuable  as  showing  the  history  of  the  law  in  England  on  the 
joinder  of  parties,  and  is  here  set  out  in  full. 

Order  XVI,  which  is  headed  "  Parties,"  provides  by  rule  1 : 
"  All  persons  may  be  joined  as  plaintiffs  in  whom  the  right  to  any  relief 
claimed  is  alleged  to  exist,  whether  jointly,  severally,  or  in  the  alternative. 
And  judgment  may  be  given  for  such  one  or  more  of  the  plaintiffs  as  may 
be  found  to  be  entitled  to  relief,  for  such  relief  as  he  or  they  may  be  en- 
titled to,  without  any  amendment" 

The  counsel  for  the  plaintiffs  argued  that  they  were  entitled  under  this  rule 
to  join  in  one  action,  as  their  claims  all  arose  out  of  the  same  transaction,  and 
the  evidence,  if  they  were  tried  separately,  would  be  the  same.  If  there 
should  be  any  inconvenience,  they  said,  in  trying  any  one  claim  with  the 
others,  a  separate  trial  for  that  case  might  be  ordered  under  Order  XVIIL 
They  cited,  as  cases  where  persons  having  different  causes  of  action  were 
allowed  to  join,  the  following :  Booth  v.  Briscoe,  2  Q.  B.  Div.  496 ;  Ays- 
cough  v.  Bullard,  60  L.  T.  Rep.  (N.  S.)  471 ;  Arnison  v.  Smith,  60  L.  T.  Rep. 
(N.  S.)  206 ;  Burstall  v.  Beyf us,  50  L.  T.  Rep.  (N.  S.)  542,  26  Ch.  Div.  85. 

BOWEN,  L.  J.—  "  This  case  depends  on  the  true  construction  of  Order 
XVI,  rule  1.  The  question  is  a  difficult  one,  and  I  cannot  say  that  I  entirely 
agree  with  the  master  of  the  rolls.  The  divergence  is  not  great,  but  I  must 
say  that  I  differ  slightly  on  the  construction  of  the  rules.  It  seems  to  me 
that  this  order  was  not  intended  to  allow  a  writ  to  be  issued  with  any  num- 
ber of  plaintiffs  and  defendants.  A  writ  of  summons  is  not  like  an  omni- 
bus into  which  anyone  may  get  as  it  goes  along.  The  question  is,  how  far 
the  joinder  of  plaintiffs  is  permitted  by  the  rule,  and  what  limitation,  if 
any,  exists,  and  is  to  be  read  into  the  rule,  and  if  so,  what  is  the  true  con- 
struction of  such  limitation?  The  rule  cannot,  I  think,  be  really  under- 
stood without  considering  its  history  as  well  as  its  language.  Before  the 
Judicature  Act  the  law  on  this  point  was  pretty  clear.  [The  italics  are  mine 
See  remarks  of  Judge  Pitt  Taylor  in  preface  to  Taylor  on  Evidence. —  ED.] 
In  the  case  of  a  contract  all  persons  with  whom  the  contract  was  made 
should  join  as  plaintiffs,  and  no  person  could  join  simply  because  he  was 
injured  by  a  breach  of  a  contract  of  another  person.  As  to  torts  the  law 
may  be  summed  up  as  follows :  All  persons  having  a  joint  interest  might 
sue  jointly ;  persons  having  a  separate  interest  and  separate  damage  had  to 
32 


494:  APPENDIX. 

sue  separately ;  persons  having  a  separate  interest  and  joint  damage  might 
sue  either  separately  or  jointly.  An  instance  may  be  found  in  the  case  of 
the  dippers  at  Tunbridge  Wells  (Weller  v.  Baker,  2  Wils.  414),  which  is  referred 
to  in  the  note  to  Coryton  v.  Lithebye  in  2  Wms.  S.  116  [see  p.  41],  where 
the  learning  on  this  subject  before  the  Judicature  Act  is  collected.  An- 
other case  which  throws  light  on  this  point  is  Forster  v.  Lawson  (ubi  supra) 
[3  Bing.  452].  In  the  case  of  a  libel  upon  partners,  if  the  damage  was  sep- 
arate they  could  not  join  the  plaintiffs  in  one  action,  but  they  could  do  so 
if  the  damage  was  caused  to  them  in  the  way  of  their  trade.  That,  I  un- 
derstand, was  the  state  of  the  law  before  the  Judicature  Act;  but  I  think  I 
ought  also  briefly  to  mention  the  rules  as  to  joinder  of  plaintiffs  under  the 
Common-law  Procedure  Acts  of  1852  and  1860.  By  section  34  of  the  act  of 
1852,  non-joinder  and  misjoinder  of  plaintiffs  might  be  amended  before 
trial.  As  regards  joinder  of  causes  of  action,  as  distinct  from  joinder  of 
parties,  section  41  provided  that  '  causes  of  action  of  whatever  kind,  pro- 
vided they  be  by  and  against  the  same  parties  and  in  the  same  rights, 
may  be  joined  in  the  same  suit;  but  this  shall  not  extend  to  replevin  or 
ejectment'  There  these  two  things  were  kept  quite  distinct,  namely :  the 
constitution  of  the  suit,  which  depended  on  the  joinder  of  parties,  and 
the  law  as  to  joinder  of  causes  of  action,  assuming  that  by  right  joinder  of 
parties  the  suit  was  properly  constituted.  Then  came  the  Common-law 
Procedure  Act  of  1860.  The  words  of  section  19  are  very  important:  'The 
joinder  of  too  many  plaintiffs  shall  not  be  fatal,  but  every  action  may  be 
brought  in  the  name  of  all  the  persons  in  whom  the  legal  right  may  be 
supposed  to  exist'  It  still  remained  the  theory  of  the  law  that  a  legal 
right  was  necessary  for  the  action,  and  that  it  must  be  supposed  to  exist 
in  the  names  of  certain  persons.  The  section  then  goes  on :  '  And  judg- 
ment may  be  given  in  favor  of  the  plaintiffs  by  whom  the  action  is  brought, 
or  of  one  or  more  of  them,  or,  in  case  of  any  question  of  misjoinder  being 
raised,  then  in  favor  of  such  one  or  more  of  them  as  shall  be  adjudged  by 
the  court  to  be  entitled  to  recover.'  The  effect  of  this  was  that  a  plaintiff 
could  not  be  defeated  by  his  having  brought  the  action  in  the  name  of  too 
many  plaintiffs ;  but  this  was  subject  to  a  qualification,  of  which  Belling- 
ham  v.  Clark  (1  B.  &  S.  332)  and  Stubs  v.  Stubs  (1  H.  &  C.  257)  are  leading 
instances,  namely,  that  the  misjoinder  would  be  fatal  if  inconsistent  with 
the  cause  of  action ;  that  is  to  say,  neither  in  contract  nor  in  tort  could  a 
plaintiff  be  joined  who  had  not  the  required  interest  or  damage  such  as  I 
have  already  referred  to.  That  state  of  things  still  left  possibilities  of  in- 
justice and  miscarriage;  a  plaintiff  might  still  be  defeated  by  a  difficulty 
in  showing  in  which  plaintiff  out  of  several  the  cause  of  action  existed. 
Then  came  Order  XVL  Rule  1  keeps  the  same  subdivision  as  there  was 
under  the  Common-law  Procedure  Acts,  and  it  begins  with  the  constitution 
of  the  action  as  to  joinder  of  parties.  Then  Order  XVIII  deals  with  the 
joinder  of  causes  of  action.  The  framers  of  Order  XVI,  rule  1,  did  not 
mean  that  any  number  of  plaintiffs  might  join  against  one  defendant  any 
number  of  causes  of  action  whether  separate  or  connected.  If  that  had 
been  meant  the  rule  would  have  been  framed  in  a  very  different  way ;  it 
might,  for  instance,  have  said  that  all  persons  may  be  joined  as  plaintiffs  who 
choose  to  join.  But  the  rule  has  been  drawn  in  a  very  different  way,  and 


APPENDIX.  495 

seems  to  me  to  have  been  drawn  on  the  same  lines  as  previous  legislation. 
It  still  keeps  in  sight  the  distinction  between  an  action  and  a  cause 
of  action.  The  way  in  which  rule  1  has  been  drawn  shows  what  was 
intended  by  it.  It  says  that  all  persons  may  be  joined  as  plaintiffs  in  whom 
'  the '  right  to  any  relief  claimed  is  alleged  to  exist  There  are  two  things 
in  the  rule  which  differentiate  it  from  any  such  general  rule  as  I  have  sug- 
gested might  have  been  made.  One  is  the  use  of  the  word  '  the,'  which 
shows  that  the  rule  is  drawn  on  the  lines  of  section  19  of  the  Common-law 
Procedure  Act  of  1860,  and  the  other  is  the  addition  of  the  words  '  whether 
jointly,  severally,  or  in  the  alternative.'  Those  last  words  would  be  unnec- 
essary if  the  intention  was  that  the  rule  should  enable  any  number  of  plaint- 
iffs to  sue  any  number  of  defendants  on  any  number  of  causes  of  action. 
Those  two  things  in  rule  1  denote  that  it  is  concerned  solely  with  the  iden- 
tity of  the  relief  claimed  by  the  various  plaintiffs.  I  do  not  know  that  the 
view  I  have  expressed  differs  much  from  what  the  master  of  the  rolls  has 
said  as  to  reading  into  the  rule  a  necessity  for  identity  of  transaction.  If 
by  that  is  meant  this,  that  the  transaction  must  be  the  same,  the  question 
being  merely  who  possesses  the  cause  of  action  and  to  whom  did  the  dam- 
age accrue,  I  do  not  know  that  there  would  be  much  difference  between  the 
view  of  the  master  of  the  rolls  and  mine.  But  if  'transaction'  is  used  in 
its  popular  sense,  meaning  that  if  the  plaintiffs  rely  on  the  same  evidence 
there  is  only  one  transaction,  then  there  is  a  difference  between  us.  I  think 
there  must  be  identity  in  everything  except  as  to  the  question  which  plaintiff 
has  the  right  to  sue.  That  being  my  view  of  Order  XVI,  rule  1,  is  it  affected 
by  Order  XVIII?  Order  XVIII  only  refers  to  the  joinder  of  causes  of  ac- 
tion ;  it  does  not  enlarge  earlier  legislation  as  to  the  proper  constitution  of 
an  action  in  respect  to  parties.  I  therefore  do  not  think  it  enlarges  the 
effect  of  Order  XVI.  But  I  will  now  consider  the  cases  on  the  subject. 
The  first  is  Booth  v.  Briscoe  (ubi  supra).  Up  to  that  time  the  law  as  regards 
libel  stood  thus :  If  there  was  no  joint  interest  or  damage,  a  number  of  per- 
fions  could  not  be  joined  as  plaintiffs,  but  partners  could  sue  jointly  for  a 
libel  on  them  in  the  way  of  their  trade  because  the  damage  would  be  joint. 
In  Booth  v.  Briscoe  (ubi  supra)  there  was  one  libel  upon  a  number  of  trust- 
ees in  regard  to  the  management  of  their  trust  The  libel  reflected  on  them 
personally,  but  not  in  the  way  of  their  trade  or  business.  The  case  was  just 
outside  the  law  as  it  stood  before  the  Judicature  Act  The  publication  of 
the  document  was  one  transaction, —  the  question  was  as  to  using  it  as  a  cause 
of  action.  Bramwell,  L.  J.,  and  the  present  master  of  the  rolls  thought  that 
the  case  fell  within  Order  XVI,  rule  1,  the  plaintiffs  claiming  to  be  entitled 
to  relief  in  respect  of  this  document  either  jointly,  severally,  or  in  the  alter- 
native. The  fact  that  each  trustee  had  a  separate  cause  of  action  in  respect 
of  one  document  was  held  not  to  take  the  matter  out  of  the  rule.  In  Gort 
v.  Rowney  (ubi  supra)  [17  Q.  B.  D.  625],  there  was  no  decision  on  this  point, 
but  the  same  minor  divergence  arose  as  in  the  present  case,  and  the  master  of 
the  rolls  and  myself  traveled  to  the  same  conclusion  on  somewhat  different 
lines.  Then  there  is  the  important  judgment  of  Lord  Selborne  in  Burstall 
v.  Beyfus  (ubi  supra).  There  the  cause  of  action  against  one  defendant 
was  wholly  disconnected  from  the  cause  of  action  against  the  other  defend- 
ants except  so  far  as  it  arose  out  of  an  incident  in  the  same  transaction,  and 


4:96  APPENDIX. 

it  was  held  that  there  was  a  mis  joinder,  the  case  not  being  one  contemplated 
by  Order  XVIIL  Lord  Selborne  emphasizes  the  distinction  which  I  have 
endeavored  to  state  between  the  objects  of  Order  XVI,  rule  1,  and  Order 
XVIII,  rule  L  He  said  this:  'To  bring  into  one  claim  distinct  causes  of 
action  against  different  persons,  neither  of  them  having  anything  to  do 
with  the  other  (and  only  historically  connected  in  the  way  I  have  suggested), 
is  not  contemplated  by  Order  XVIII,  rule  1,  which  authorizes  the  joinder, 
not  of  several  actions  against  distinct  persons,  but  of  several  causes  of  ac- 
tion.' Then  there  is  also  the  case  of  Sandes  v.  Wildsmith  (ubi  supra) 
[1  Q.  B.  771],  in  which  the  Divisional  Court  took  the  same  view.  Under  these 
circumstances  the  question  arises,  taking  the  view  which  I  adopt  of  the 
meaning  of  'one  transaction,'  whether  there  is  in  this  case  one  transaction 
upon  which  the  plaintiffs  are  entitled  to  sue  together.  In  my  view  there  is 
not '  one  transaction,'  although  there  are  several  things  in  common  to  all 
the  plaintiffs.  All  the  goods  carried  were  bales  of  cotton ;  they  all  came 
together  in  one  ship.  But  the  goods  of  the  various  plaintiffs  came  under 
different  contracts  of  carriage,  and  the  case  of  each  plaintiff  depends  oa 
how  far  as  against  him  the  ship-owners  can  show  that  the  quantities  in  his 
bill  of  lading  are  wrong  as  to  the  shipments  at  the  port  of  loading.  It  seems 
to  me  that  the  success  of  each  plaintiff  depends  on  that ;  and  to  my  mind  it 
would  be  productive  of  confusion  rather  than  otherwise  if  the  plaintiffs 
joined,  and  put  all  their  contracts  into  one  writ  I  am  afraid  that  doing 
this  would  lead  to  laxity  on  the  part  of  the  jury.  Therefore  I  must  say  I 
am  not  pressed  by  any  of  the  suggestions  of  mischief  that  might  possibly 
occur  in  this  case.  The  view  which  I  hold  of  the  effect  of  these  rules  I 
entertain  strongly,  and  I  have  therefore  thought  it  right  to  express  it 
clearly." 


APPENDIX.  497 


EDITOR'S  NOTE  B. 

Joinder  of  actions  and  mode  of  pleading  several  causes  in 
one  case. — 

What  causes  of  action  may  l)e  joined  in  one  count  under  the 
Connecticut  practice  act. —  The  following  memorandum  of  de- 
cision was  rendered  by  Hon.  Samuel  O.  Prentice,  judge  of  the 
superior  court,  in  February,  1898,  and  is  now  on  file  in  the  of- 
fice of  the  clerk  at  New  Haven : 

THE  WINCHESTER  REPEATING  ARMS  COMPANY  vs.  THE  NEW 
YORK,  NEW  HAVEN  AND  HARTFORD  RAILROAD  COMPANY.! 

STATEMENT  OF  THE  CASE  BY  THE  EDITOR  OP  THE  YALE  LAW  JOURNAL. 

The  action  which  is  now  pending  in  that  court  is  for  the  loss  of  goods 
shipped  by  the  plaintiff  over  defendant's  railroad.  The  plaintiff  stated  in 
one  count  that  the  goods  were  delivered  to  the  defendant  as  a  common 
carrier  at  common  law;  that  at  the  time  of  the  delivery  of  the  goods  cer- 
tain bills  of  lading  were  also  delivered  to  and  accepted  by  the  defendant, 
but  that  there  was  no  consideration  for  the  bills  of  lading,  that  they  were 
unreasonable  and  unjust  in  their  terms,  and  that  therefore  they  were  not 
binding  contracts,  and  that  the  defendant  had  no  right  to  the  limitation 
of  liability  expressed  therein.  Under  these  circumstances,  the  plaintiff 
claimed  that,  in  spite  of  the  bills  of  lading,  the  defendant  was  liable  as  a 
common  carrier  at  common  law,  and  alleged  the  failure  of  the  defendant 
to  carry  and  deliver  the  goods.  The  plaintiff  went  on  to  say  that  if  the 
bills  of  lading  were  valid,  then  the  defendant  was  liable  because  the  goods 
were  lost  through  its  negligence. 

Defendant  moved  to  correct  the  complaint  by  requiring  the  plaintiff  to 
state  upon  which  cause  of  action  it  relied,  or  to  separate  the  causes  of  ac- 
tion. The  case  was  argued  at  length,  plaintiff  relying  principally  upon  the 
decision  of  the  supreme  court  of  Connecticut  in  the  case  of  Craft  Refrig- 
erating Co.  v.  Quinnipiac  Brewing  Co. 

OPINION. 

This  complaint  in  one  count  contains  statements  of  divers  facts,  some 
pertinent  to  a  right  of  recovery  upon  one  ground,  and  some  upon  another. 
The  plaintiff  justifies  this  combination  of  allegations  in  one  count  upon  the 
authority  of  The  Craft  Refrigerating  Co.  v.  The  Quinnipiac  Brewing  Co.,  63 
Conn.  551. 

The  question  is  thus  raised  as  to  the  scope  and  effect  of  this  oft-cited  case. 
By  the  profession  generally  it  has  apparently  been  received  as  it  has  by 
counsel  for  the  plaintiff  as  sanctioning  as  proper  pleading  the  filing  in  court 
as  a  complaint  of  any  leaf  of  history  between  persons  which  may  be  said 

1  Superior  court,  New  Haven  county,  February  9, 1898.  Reported  in  Yale 
Law  Journal,  Vol.  7  —  March,  1898,  p.  245. 


4:98  APPENDIX. 

to  relate  to  any  single  transaction,  using  that  term  in  its  most  comprehen- 
sive sense,  however  varied  and  many-sided  that  transaction  may  be.  As 
necessary  sequels  to  this  manner  of  pleading  it  is  conceived  that  the  plaintiff 
may  shift  his  position  as  often  as  he  is  pleased  or  forced  to  do  so,  as  the 
case  progresses,  as  long  as  he  keeps  under  the  cover  of  any  of  the  aver- 
ments of  his  complaint;  that  the  opposite  party  and  the  court  are  put  to 
the  hazard  of  searching  out  at  their  peril  for  defense,  trial,  ruling  and 
decision,  the  many  causes  or  rights  of  action  which  may  be  concealed 
within  its  multitudinous  allegations,  and  that  the  plaintiff  has  under  it  a. 
carte  blanche  to  recover  for  any  cause  of  action  which  his  opponent  shall 
fail  to  discover  or  successfully  defend. 

Against  such  doctrine  I  must  protest  as  being  subversive  of  the  very  pur- 
pose of  pleading  and  paving  the  way  for  all  manner  of  uncertainty,  confu- 
sion, pleading  entanglement  and  even  ultimate  injustice.  If  we  have  come 
to  the  point  where  such  pleading  is  permissible  we  have  indeed  taken  a 
long  step  backward  towards  that  primitive  time  when  parties  appeared  in 
person  before  the  magistrate  and  told  their  story  in  open  court,  and  the 
magistrate  adjudged  as  upon  the  whole  seemed  to  him  just  and  right. 
Modern  conditions,  I  fancy,  do  not  admit  of  such  methods. 

Phillips,  in  commenting  upon  the  requirement  of  the  codes  for  separate 
statement  of  causes  of  action,  makes  the  following  pertinent  remarks: 

"  Such  statement  of  causes  is  clearly  indispensable  to  an  orderly  system 
of  pleading.  In  no  other  way  can  the  legal  sufficiency  of  any  one  cause  be 
tested  by  demurrer;  in  no  other  way  can  different  defenses  be  made  to  the 
different  causes;  in  no  other  way  can  separate  and  distinct  issues  be  made 
and  tried;  in  no  other  way  can  the  introduction  of  evidence  be  intelligently 
conducted;  and  in  no  other  way  can  the  record  be  made  clearly  to  show 
what  matters  have  been  adjudicated  and  how  decided.  The  provision  for 
the  joinder  of  distinct  demands  in  one  action  is  for  the  convenience  and 
economy  of  litigants,  and  its  object  may  be  promoted  by  liberality  in  its- 
application,  but  the  requirement  that  causes  of  action  when  joined  shall  be 
separately  stated  is  to  enhance  the  certainty,  the  precision  and  the  safety 
of  procedure,  and  its  object  can  be  promoted  only  by  enforcing  it  with  rea- 
sonable strictness."  (Phillips  on  Code  Pleading,  sec.  202.) 

Such  doctrine,  however,  as  that  to  which  I  have  referred  as  having  been, 
drawn  from  the  Craft  case,  I  am  confident  is  not  supported  by  that  case. 
It  is  doctrine  which  I  believe  to  be  plainly  repugnant  to  the  express  pro- 
visions of  our  practice  act  and  of  all  known  codes,  and  I  fail  to  discover 
what  there  is  in  the  opinion  in  the  Craft  case,  when  properly  interpreted, 
which  warrants  the  conclusions  which  have  been  drawn  from  it. 

The  doctrine  of  that  case,  as  I  understand  it,  is  simply  and  only  this:  that 
where  a  single  inseparable  state  of  facts  gives  rise  to  two  or  more  rights  of 
action,  or  where  the  plaintiff  upon  such  statement  of  facts  may  upon  differing 
constructions  thereof  be  entitled  to  differing  relief,  the  complaint  in  a  single 
count  setting  up  these  facts  may,  in  the  first  case,  entitle  him  to  demand 
and  have  any  of  the  several  kinds  of  relief  which  the  facts  in  any  aspect 
of  them  support,  or  in  the  second  case  to  demand  alternative  relief  appro- 
priate to  the  different  constructions  which  the  law  may  place  upon  the 
facts,  and  have  such  relief  as  the  true  construction  warrants. 


APPENDIX.  4-99 

There  are  many  states  of  fact  which  give  rise  to  more  than  one  right  of 
action,  as,  for  instance,  one  in  contract,  and  another  in  tort.  A  complaint 
setting  up  such  states  of  fact  may  contain  matter  pertinent  to  each  right 
of  action,  and  no  matter  not  pertinent  to  both.  The  Craft  Refrigerating 
Company  case  very  properly  holds,  as  I  shall  have  occasion  to  further  no- 
tice later,  that  such  a  complaint  in  one  count  is  good,  that  the  plaintiff 
may  go  to  trial  thereon  without  electing  which  right  of  action  he  will  pur- 
sue, and  that  he  may  thereunder  be  given  such  relief  as  the  facts  may  war- 
rant. 

There,  however,  may  be  other  conditions,  to  wit: 

1.  A  count  may  contain  allegations,  all  of  which  are  appropriate  to  one 
right  of  action,  while  at  the  same  time  a  portion  of  them  are  also  appropri- 
ate to  and  sufficiently  support  another  right  of  action,  the  remainder  being 
altogether  inappropriate  to  such  second  right  of  action. 

2.  A  count  may  contain  allegations,  a  part  of  which  are  pertinent  and 
appropriate,  and  a  part  impertinent  and  inappropriate  to  each  of  two  or 
more  rights  of  actions. 

With  respect  to  such  counts  the  principle  of  the  Craft  case  does  not  apply. 
To  so  hold  would  be  to  violate  the  clear  and  express  provisions  of  the  prac- 
tice act.  Section  878  of  the  General  Statutes  provides  what  may  be  joined 
in  a  complaint,  and  how  such  joinder  may  be  made.  The  pertinent  require- 
ments are  (1)  that  several  causes  of  action  may,  under  certain  conditions, 
ba  joined  in  one  complaint,  and  (2)  that  such  causes  of  action  so  joined 
must  be  separately  stated. 

Another  pertinent  provision  is  that  which  permits  the  joinder  in  one 
complaint  of  causes  of  action  "  arising  out  of  the  same  transaction,  or  trans- 
actions connected  with  the  same  subject  of  action." 

In  order  to  arrive  at  a  correct  understanding  of  what  the  effect  of  this 
section  of  the  statutes  is,  it  is  necessary  to  have  a  clear  conception  of  the 
meaning  of  the  terms  which  it  employs,  to  wit,  "right  of  action,"  "cause 
of  action,"  and  "transaction.'" 

A  "right  of  action"  is  the  secondary  right  to  relief  which  springs  from 
the  invasion  of  some  primary  right.  It  is  the  right  to  relief  appropriate  to 
the  facts  from  which  the  right  of  action  springs. 

A  "  cause  of  action,"  on  the  other  hand,  to  quote  the  language  of  Pomeroy, 
is  the  situation  or  state  of  facts  from  which  a  "  right  of  action  "  springs, 
The  facts  from  which  a  remedial  right  —  that  is,  a  right  to  relief — arises 
constitutes  the  "cause  of  action." 

Phillips,  in  commenting  upon  this  distinction  between  a  "  right  of  ac- 
tion "  and  a  " cause  of  action,"  uses  this  language:  "From  the  foregoing 
definitions  of  '  right  of  action '  and  '  cause  of  action,'  it  will  be  seen  that  the 
former  is  a  remedial  right  falling  to  some  person,  and  that  the  latter  is  a 
formal  statement  of  the  operative  facts  that  give  rise  to  such  remedial 
fact."  (Phillips  on  Code  Pleading,  sec.  31.) 

A  "  transaction  "  is  something  quite  apart  from  a  "  right  of  action,"  and 
something  more  comprehensive  than  a  "  cause  of  action."  The  term  is  one 
which  has  been  seldom  defined  and  to  which  it  is  hard  to  give  a  definition 
helpful  in  practical  applications  and  suited  to  all  circumstances.  Our  su- 
preme court  in  the  Craft  case,  however,  has  said  that  a  transaction  "  con- 


500 

sists  of  an  act  or  agreement,  or  several  acts  or  agreements,  having  some 
connection  with  each  other,  in  which  more  than  one  person  is  concerned, 
and  by  which  the  legal  relations  of  such  persons  between  themselves  are 
altered." 

A  definition  in  different  language,  but  to  the  same  general  effect,  might 
be  made  upon  the  basis  of  Pomeroy's  analysis  somewhat  as  follows:  "A 
single  continuous  connected  proceeding,  negotiation,  or  conduct  of  business 
between  parties,  characterized  by  a  unity  of  action  and  circumstance,  and 
forming  one  affair." 

Definitions  aside,  however,  it  is  certain  that  from  a  single  "  transaction  " 
several  "  causes  of  action  "  may  arise,  each  giving  to  the  injured  party  one 
or  more  "rights  of  action." 

In  this  connection  it  ought  to  be  observed  that  a  "  right  of  action  "  is  to 
be  distinguished  from  the  object  of  the  action.  The  object  of  the  action  is 
the  relief  which  is  sought.  The  "  right  of  action  "  is  the  right  to  that  relief 
which  arises  from  the  facts  which  constitute  the  "cause  of  action."  In  ac- 
tions at  law  the  object,  whatever  the  "  right  of  action  "  may  be,  is  generally 
damages. 

A  "  right  of  action  "  at  law  always  arises  from  the  existence  of  a  right 
and  the  invasion  of  it  by  some  wrong  on  the  part  of  another.  The  "cause 
of  action  "  is  the  facts  which  establish  the  right  and  the  wrong.  Its  state- 
ment is  therefore  only  a  statement  of  these  facts.  Such  statement  is  single 
if  it  sets  up  only  one  right  invaded  by  one  wrong.  It  is  double  if  it  sets  up 
either  two  rights  invaded  by  one  wrong  or  one  right  invaded  by  two  wrongs. 

If  now  we  examine  section  878  with  these  distinctions  and  principles  in 
mind,  its  interpretation  becomes  clear  and  its  operation  simple.  Where 
there  is  a  single  state  of  facts  from  which  a  right  to  relief  arises,  there  is 
but  one  "cause  of  action."  A  count,  therefore,  which  sets  up  such  a  state 
of  facts,  and  that  only,  states  but  one  "cause  of  action"  in  the  sense  in 
which  that  phrase  is  used  respecting  the  joinder  of  actions,  no  matter  how 
many  rights  of  action  may  spring  from  these  facts.  Of  course,  causes  of 
action  might  be  differentiated,  not  only  with  respect  to  the  facts  averred, 
but  also  with  respect  to  the  nature  of  the  relief  sought  upon  the  facts.  This 
narrow  distinction,  however,  is  not  the  logical  one,  since  the  prayer  for  re- 
lief is  no  part  of  a  count  and  no  part  of  the  cause  of  action.  Neither  is  it 
the  distinction  contemplated  by  the  practice  act.  The  separation  of  causes 
of  action  is  not  to  be  determined  by  the  relief  demanded,  but  by  the  action- 
able facts  alleged,  from  which  the  right  to  redress  is  claimed  to  flow.  Upon 
this  construction  there  can  therefore  be  no  joinder  of  causes  of  action  in  a 
count  which  sets  up  a  single  set  of  facts,  all  pertinent  to  whatever  relief 
may  be  demanded  upon  those  facts.  Such  a  count  of  necessity  alleges  but 
one  right  and  one  invading  wrong.  Such  in  the  opinion  of  the  court  was 
the  single-count  complaint  in  the  Craft  case. 

If  now  we  turn  to  counts  of  the  second  variety  heretofore  specified,  to 
wit,  those  containing  allegations  all  of  which  are  appropriate  to  one  "  right 
of  action,"  while  a  portion  of  them  are  also  appropriate  to  and  sufficient  to 
support  another  "  right  of  action,"  the  remainder  being  altogether  inappro- 
priate to  such  second  "  right  of  action,"  the  situation  becomes  at  once  and 
radically  changed,  if  the  plaintiff  is  permitted  to  treat  such  counts  as  good 


APPENDIX.  501 

ones  for  rights  of  action  to  which  all  their  allegations  are  not  appropriate. 
In  such  cases  there  is  plainly  a  joinder  of  causes  of  action.  The  instant 
that  there  is  combined  in  one  count  facts  appropriate  to  one  cause  of  action 
and  facts  inappropriate  to  it,  but  appropriate  to  another  cause  of  action, 
there  arises  a  joinder  of  causes  of  action.  This  is  necessarily  so  since,  as 
\ve  have  seen,  causes  of  action  are  only  the  facts  from  which  rights  of  ac- 
tion spring.  A  statement  of  a  cause  of  action  being  only  a  recital  of  facts  — 
a  recital  of  the  facts  from  which  the  right  of  action  arises  —  the  conse- 
quence is  inevitable  that  wherever  there  is  contained  in  a  count  material 
allegations  inappropriate  to  a  statement  of  a  cause  of  action  therein,  but 
pertinent  and  appropriate  to  another  cause  of  action,  there  is  a  joinder  of 
causes  of  action,  since  there  is  a  joinder  of  facts  issuing  independently  in 
different  rights  of  action. 

The  practical  result  in  such  a  case  should  be  that  the  count  should  be  re- 
garded as  one  for  the  right  or  rights  of  action  to  which  all  its  material 
allegations  are  appropriate,  and  not  one  upon  which  the  plaintiff  might  re- 
cover for  a  right  of  action  to  which  only  a  part  of  its  material  allegations 
are  appropriate.  Having  himself  inserted  the  additional  allegations  which 
give  character  to  the  count  as  one  for  those  rights  of  action  which  all  its 
recitals  support,  he  should  be  held  to  have  chosen  his  ground  as  he  has 
stated  it,  and  not  permitted  to  change  it  by  treating  his  own  material  aver- 
ments as  surplusage.  Such  a  count,  under  such  an  interpretation,  would 
not  contain  a  joinder.  It  would  be  simply  a  count  for  a  single  cause  of 
action,  to  wit,  that  cause  of  action  which  all  its  material  averments  to- 
gether support. 

Counts  of  the  remaining  class,  to  wit,  those  containing  allegations  a 
part  of  which  are  appropriate  and  a  part  inappropriate  to  each  of  two  or 
more  rights  of  action,  would,  for  reasons  already  discussed  and  which  need 
not  be  repeated,  contain  a  joinder. 

If  I  am  correct  in  this  interpretation  of  section  878  its  provisions  become 
easily  intelligible,  and  their  application  simple  and  satisfactory.  There  is 
no  longer  any  mystery  as  to  what  a  count  may  properly  embrace,  nor  mys- 
tery as  to  what  rights  of  action  a  count  may  support.  A  single  count  may 
contain  the  statement  of  a  single  cause  of  action,  and  that  only.  It  is  such 
a  count,  if  all  its  material  averments  are  pertinent  and  appropriate  to  the 
statement  of  any  one  cause  of  action.  If  its  allegations  are  in  part  appro- 
priate and  in  part  inappropriate  to  each  of  two  or  more  causes  of  action, 
there  is  a  joinder  of  causes  of  action.  Where  there  is  a  statement  of  a 
single  cause  of  action,  the  plaintiff  may  have  relief  for  any  right  of  action 
to  which  it  entitles  him.  He  can  have  no  relief  for  rights  of  action  to 
which  all  the  material  allegations  are  not  pertinent  and  appropriate. 

The  principles  which  I  have  thus  laid  down  are  general  ones.  In  their 
application  to  actual  conditions,  however,  they  are  not  without  natural  and 
necessary  limitations.  Circumstances  will  sometimes  arise  under  which, 
from,  necessity,  or  convenience  amounting  to  a  practical  necessity,  their 
strict  enforcement  will  not  be  required.  These  circumstances  will  espe- 
cially arise  where  equitable  relief  is  sought,  either  as  preliminary  to  or  in 
connection  with  legal  relief,  or  alone,  where  different  forms  of  equitable 
relief  are  demanded.  Equitable  causes  of  action  are  frequently  not  sus- 


502  APPENDIX. 

ceptible  of  that  clear  and  distinct  separation  from  each  other  and  from  the 
circumstances  of  the  transaction  out  of  which  they  arise  that  legal  causes 
of  action  are.  Legal  rights  of  action  are  generally  clearly  differentiated 
from  each  other,  and  the  facts  which  issue  in  them  are  generally  easily 
separable  in  statement  from  other  connected  facts.  Equitable  rights  to 
relief  oftentimes  run  more  closely  into  each  other,  and  the  facts  which  issue 
in  them  are  frequently  not  conveniently  susceptible  of  an  independent  and 
unassociated  statement.  The  practice  act  lays  down  no  hard  and  fast 
rules  which  neither  yield  to  necessity  nor  recognize  that  pleading  is  but  a 
means  to  an  end  —  the  end  that  issues  may  be  framed  and  relief  demanded 
and  given  in  a  way  most  conducive  to  the  convenient,  orderly  and  proper 
administration  of  justice  and  equity. 

The  Craft  case  calls  attention  to  one  of  these  limiting  principles,  where 
it  says  that  "  separate  and  distinct  causes  of  action  within  the  meaning  of 
the  rule  are  those  which  are  separable  from  each  other,  and  separable  by 
some  distinct  line  of  demarkation.''  The  opinion  observes  that  in  one  sense 
every  cause  of  action  must  be  separate  and  distinct  from  any  other,  while 
in  another  sense  causes  of  action  might  differ  from  each  other  only  in  that 
distinct  and  separate  claims  for  relief  issue  from  the  same  state  of  facts. 

The  practice  act  seeks  to  require  nothing  impossible,  nothing  superflu- 
ous, nothing  which  occasions  inconvenience  without  a  corresponding  re- 
turn. It  therefore  does  not  demand  separation  of  causes  of  action  where 
the  only  distinction  between  them  can  be  that  which  arises  from  the  dis- 
tinct kinds  of  relief  which  may  be  demanded  from  a  given  state  of  facts; 
or  where  a  separation  by  some  distinct  line  of  demarkation  is  impossible ; 
or  where  the  ends  of  good  pleading  are  better  and  more  simply  reached  by 
a  departure  from  strict  requirements.  The  principles  which  I  have  laid 
down  are  therefore  simply  general  ones  which  are  to  govern  the  pleader, 
unless  there  is  some  sufficient  controlling  reason  for  action  otherwise.  They 
are  not  to  be  applied  in  any  technical  spirit  or  with  microscopic  exactness, 
but  to  the  end  that,  upon  the  one  hand,  the  many  and  grave  evils  of  double 
pleading  may  be  avoided,  and,  upon  the  other,  that  parties  may  arrive  at 
issue  as  simply,  directly  and  distinctly  as  they  reasonably  and  properly 
may. 

Having  thus  discussed  principles  without  much  reference  to  Connecticut 
authority,  let  me  now  inquire  if  there  is  such  authority  for  contrary  views, 
I  submit  that  there  is  none.  The  Craft  case  is  the  only  one  which  has  dis- 
cussed this  general  question  to  any  extent.  If  it  be  carefully  studied,  I 
believe  that  in  its  doctrines  there  will  be  found  nothing  subversive  of  the 
positions  I  have  here  taken.  The  court  in  that  case  clearly  regarded  the 
complaint  as  one  setting  up  only  a  single  inseparable  state  of  facts  from 
which  two  rights  of  action  sprang — a  single  cause  of  action  in  the  broad 
and  true  sense  of  that  term  —  or  at  least  two  causes  of  action  incapable  of 
separation  by  any  true  line  of  demarkation. 

Much  of  the  difficulty,  I  fancy,  which  has  arisen  in  the  interpretation  of 
section  878,  and  of  the  Craft  case,  has  come  from  a  failure  to  distinguish  a 
cause  of  action  from  a  transaction.  These  terms  have  been  used  so  loosely 
and  interchangeably  that  the  distinction  between  them  which  the  codes 
and  our  practice  act  emphasizes  is  too  often  lost  sight  of. 


APPENDIX.  503 

The  prevalent  notion  that  all  that  one  now  needs  to  do  is  to  tell  his  story, 
whatever  that  story  may  be,  and  leave  to  the  opposite  party  and  the  court 
the  duty  of  guessing  out  what  his  cause  of  action  is,  has,  I  must  believe,  its 
origin  in  this  misunderstanding  and  the  consequent  misconception  of  what 
the  practice  act  requires  to  be  stated.  The  cause  of  action — that  is,  the  facts 
from  which  the  plaintiff's  right  or  rights  of  action  spring — is  required  to  be 
set  out.  No  semblance  of  authority  is  given  for  setting  out  a  transaction,  un- 
less indeed  the  transaction  in  its  entirety  constitutes  a  cause  of  action.  The 
plaintiff  is  compelled  to  discover  from  the  acts  and  occurrences  of  the  trans- 
action his  cause  or  causes  of  action,  and  set  them  out  separately.  He  is  not 
required,  as  the  Craft  case  says,  to  construe  his  right  under  a  cause  of  ac- 
tion and  give  it  a  label,  as  he  was  obliged  to  do  in  common-law  pleadings; 
but  he  is  obliged  to  select  his  cause  of  action,  and  make  known  his  claimed 
actionable  facts  which  constitute  it.  The  story  which  the  Craft  case  says 
he  is  permitted  to  tell  as  plainly  and  concisely  as  may  be  is  the  story  which 
makes  up  the  cause  of  action,  and  not  any  longer  or  more  comprehensive 
story  —  not  the  story  of  a  transaction.  The  practice  act  is  careful  to  make 
this  distinction  between  a  transaction  and  a  cause  of  action,  and  to  impose 
the  duty  of  separate  allegation.  It  contains  express  recognition  of  "several 
causes  of  action  arising  from  the  same  transaction,  or  transactions  con- 
nected with  the  same  subject  of  action." 

Having  thus  laid  down  the  rules  by  which  counts  are  to  be  tested  respect, 
ing  joinder  of  causes  of  action  therein,  it  remains  to  apply  them  to  the 
complaint  under  review.  It  was  apparently,  and  I  believe  I  may  fairly  say 
confessedly,  framed  to  enable  the  plaintiff  to  recover  thereunder  upon  any 
cause  of  action  it  might  ultimately  appear  that  it  had  growing  out  of  the 
matters  covered  by  its  allegations.  If  not  precisely  hydra-headed,  it  cer- 
tainly looks  in  at  least  six  different  directions.  Within  it  are  matters 
which  might  be  held  to  justify  a  recovery  under  any  one  of  the  following 
conditions: 

1.  A  recovery  for  the  breach  of  the  common-law  duty  of  a  common  car- 
rier where  no  express  agreement  of  carriage  was  mada 

2.  A  recovery  for  the  breach  of  the  common-law  duty  of  such  carrier  re- 
ceiving goods  for  transportation  without  an  express  agreement  for  carriage, 
which  breach  of  duty  consisted  in  its  active  negligence. 

3.  A  recovery  for  the  breach  by  such  carrier  of  an  express  contract  of 
carriage. 

4.  A  recovery  for  the  destruction  of  property  delivered  to  such  carrier 
under  an  express  contract,  which  being  unreasonable  and  unjust  in  its 
terms,  and  improperly  exacted  from  the  shipper,  may  not  protect  it  from 
responsibility  for  the  destruction  of  the  goods. 

5.  A  recovery  for  the  breach  of  duty  of  such  carrier  by  reason  of  its  own 
negligence,  notwithstanding  an  express  contract  of  carriage  was  made. 

6.  A  recovery  for  negligence  pure  and  simple. 

The  plaintiff  disclaims  any  thought  of  preparing  the  way  for  recovery 
upon  the  latter  ground,  but  expresses  its  desire  to  have  the  count  so  phrased 
that  it  would  support  a  recovery  if  the  evidence  should  disclose  the  exist- 
ence of  either  of  the  other  conditions. 

I  need  not  say  that  in  my  opinion  a  count  of  this  kind  is  improper. 


50i  APPENDIX.  NOTE  (1). 

The  fundamental  fault  in  the  complaint  is  that  it  sets  out  the  whole 
transaction.  Plaintiff  has  not  sought  to  gather  from  its  incidents  its  cause 
of  action  and  set  that  up,  or  its  causes  of  action  and  set  them  up  separately. 

It  is  clear  that  under  the  principles  I  have  laid  down  the  count  is  not  a 
good  one  for  either  the  first,  second,  third,  fourth  or  sixth  causes  of  action 
enumerated.  The  presence  therein  of  material  averments  inappropriate  to 
either  one  of  these  causes  of  action,  but  pertinent  to  other  causes  of  action, 
leads  to  this  result.  If  the  count  can  upon  its  most  liberal  construction  be 
justified  as  an  attempt  running  through  all  its  allegations  to  set  up  one 
cause  of  action,  it  must  be  one  for  the  destruction,  through  the  negligence 
of  the  defendant  carrier,  of  goods  delivered  to  it  for  transportation  for  hire 
under  a  special  contract,  which,  being  unreasonable  and  improperly  exacted, 
could  not  exempt  it  from  responsibility  for  such  negligent  destruction. 

Even  in  this  aspect  of  the  count  it  is  not  free  from  faults.  If  it  is  sought 
to  allege  the  existence  of  a  special  contract  of  carriage,  the  averments  are 
neither  appropriate  nor  sufficiently  clear.  Certain  evidential  facts  are  re- 
cited, but  it  is  nowhere  apparent,  much  less  distinctly  alleged,  whether  it 
is  claimed  that  a  contract  existed  or  not.  It  is  impossible  to  gather  from 
the  averments  what  the  claimed  state  of  facts,  and  therefore  what  the  cause 
of  action,  is.  It  is  not  possible  to  discover  what  right  of  the  plaintiff  it 
claims  to  have  been  invaded,  or  by  what  precise  wrong  it  has  been  invaded. 

Section  880  provides  that  all  pleadings  shall  contain  a  plain  and  concise 
statement  of  the  material  facts  upon  which  the  pleader  relies,  but  not  of 
the  evidence  by  which  they  are  to  be  proved.  Another  requirement  of  code 
pleading  is  that  all  allegations  shall  be  direct  and  certain.  Clearly  these 
requirements  are  not  met  in  the  present  complaint. 

Defendant's  motion  is  granted  to  the  extent  that  plaintiff  is  ordered : 

1.  To  separate  into  distinct  counts  its  several  causes  of  action,  if  it  desires 
to  rely  upon  more  than  one. 

2.  To  state  such  cause  or  causes  of  action  in  distinct  and  certain  aver- 
ments, which  shall  avoid  recitals  of  evidential  matter,  allegations  of  facts 
which  are  not  ultimate  and  operative  facts,  and  averments  of  facts  which 
are  not  material  to  the  cause  of  action  being  stated.] 

NOTE  (1).     See  p.  1. 

Plee,  in  French, —  in  English,  plea, —  were  anciently  used  to 
signify  suit  or  action.  While  used  in  this  sense  they  gave  rise 
respectively  to  the  words  pleder  and  to  plead;  of  which  the 
first  and  primary  meaning  was,  accordingly,  to  litigate;  but 
which,  in  the  later  English  law,  have  been  taken  in  the  more 
limited  sense  of  making  allegation  in  a  cause.  Hence  the 
name  of  that  science  of  pleading  to  which  this  work  relates. 

This  variable  word,  to  plead,  has  indeed  still  another  and 
more  popular  use,  importing  the  forensic  argument  in  a  cause; 
but  it  is  not  so  employed  by.  the  profession. 

Whether  plee  and  pleder  were  derived  from  the  parallel 
Latin  terras  placitum  and  placitare  is  somewhat  doubtful. 
If  so,  it  must  have  been  through  the  gradation  of  the  more 


(2).  APPENDIX.  505 

ancient  French  word  jplaids,  which,  according  to  Houard,  (5) 
at  first  signified  the  assemblies  of  the  kings  and  great  men  of 
the  realm,  and  was  afterwards  applied  to  ordinary  courts  of 
justice.  "With  respect  to  placitum  itself  it  is  most  probably 
of  Roman  origin,  for  it  is  clear  that  both  the  rescripts  of  the 
emperors  and  the  judicial  decisions  in  the  Roman  empire  had 
that  name,  (c)  It  has,  however,  been  considered  by  some 
writers  as  derived  from  plats  (a  German  word  for  campus\ 
quod  in  campo  tenerentur  placita.  (d)  Either  of  these,  though 
a  less  amusing,  is  perhaps  a  more  satisfactory,  conjecture  than 
that  which  derives  placitum  f  rom  placendo, —  quia  bene  placi- 
tare  super  omnia  placet,  (e) 

NOTE  (2).    See  p.  112. 

This  part  of  our  juridical  system,  viz.,  the  use  of  lyrevia  or 
writs  as  essential  formula  for  the  institution  of  a  suit,  is  not 
only  connected  with  the  whole  scheme  of  actions,  but  will 
presently  appear  to  have  an  important  relation  to  pleading  in 
particular.  It  is  also  remarkable  as  being  (in  modern  times 
at  least)  unknown  to  the  practice  of  the  courts  of  other  coun- 
tries and  a  peculiarity  of  the  national  law.  These  circum- 
stances naturally  excite  some  curiosity  to  investigate  its  origin ; 
yet  the  subject  is  involved  in  considerable  obscurity.  Though 
we  know  that  some  of  the  brevia  are  at  least  as  ancient  as  the 
time  of  Henry  II.  (being  to  be  found  in  the  work  of  Glanville, 
who  wrote  in  that  king's  reign),  the  student  will  in  vain  search 
the  books  of  the  science  for  any  distinct  and  satisfactory  ac- 
count of  their  original  invention.  It  is  said,  on  high  authority, 
that  the  more  common  and  ordinary  writs  were  "  de  communi 
consilio  totius  regni  concessa  et  approbata ; "  (f)  and  also  that 
some  writs  existed  "long  before  the  Conquest;"  (g)  while 
another  learned  writer  asserts  that  the  more  ancient  of  them 
were  brought  from  Normandy ;  (A)  and  these  vague  and  some- 

(5)  Anciennes  Loix  des  Francois,  etc.,  sec.  10. 

(c)  See  Brisson,  de  verborum  signif . 

(d)  Ducange,  Gloss.,  verbo  Placitum. 

(f)  Co.  Litt.  17  a. 
(/)  Bract.  413  b. 

(g)  Co.  Pref .  to  10  Rep.     This  proposition  of  Lord  Coke's  seems  to  have  been  satisfac- 
torily refuted  by  Hickes.    See  the  Dissertatio  Epistolaris  in  his  Thesaurus. 

(fc)  OUb.  Hist,  of  C.  P.  2,  6. 


506  APPENDIX.  NOTE  (2). 

what  inconsistent  statements  seem  to  constitute  the  whole 
substance  of  the  information  to  be  derived  from  professional 
sources  on  this  subject.  If  we  turn  for  farther  elucidation 
to  the  antiquarians,  we  shall  find  little  beyond  vague  conject- 
ure; and  even  in  this  a  great  discordance,  both  as  to  the  ori- 
gin of  the  instrument  and  the  derivation  of  its  name.  While 
one  learned  writer  refers  the  origin  of  the  term  breve  to  a 
new  application  among  the  Normans  of  a  word  derived  from 
their  Scandinavian  ancestors,  signifying  a  letter  or  epistle,  (i) 
others  speak  of  it  as  borrowed  from  the  imperial  and  pontifi- 
cal constitutions,  and  as  ultimately  derived  from  the  word 
brevis.  (&)  Again,  the  language  of  these  instruments  is  sup- 
posed, on  great  authority,  (I)  to  have  owed  much  to  the  Roman 
forms;  though,  on  the  other  hand,  an  illustrious  antiquarian 
declares  that  it  has  the  most  remote  English  extraction,  and 
has  hardly  a  word  derived  from  the  Caesarean  law.  (m) 

Whatever  may  be  the  authority  for  the  opinion  that  brevia 
for  the  institution  of  suits  were  in  existence  in  this  country 
before  the  Conquest,  it  is  at  least  certain  that  there  is  no  men- 
tion of  them  in  the  laws  of  the  Anglo-Saxons  now  extant ;  (n) 
but  that  they  were  in  use  both  in  substance  and  in  name  in 
the  ancient  laws  of  Normandy  is  a  fact  well  known  to  all  who 
have  looked  into  the  Grand  Coustumier.  On  this,  however, 
as  on  many  other  features  common  to  the  laws  of  England 
and  Normandy,  the  doubt  has  been  to  which  of  the  two  na- 
tions the  original  invention  is  to  be  ascribed ;  for  it  seems  to  be 
clear  that  if  the  English  at  first  received  the  institutions  of 
their  conquerors,  they  in  turn  began  to  impart  their  own  im- 
provements; and  the  Grand  Coustumier  is  confessedly  of  date 
long  posterior  to  the  treatise  of  Glanville.  (o)  The  remark  of 
a  learned  foreigner  hot  only  tends  to  decide  this  question, 
but  at  the  same  time  throws  more  light  on  the  ulterior  origin 
of  the  brevia  than  can  be  obtained  from  any  writer  of  our 
own  country.  It  is  well  known  that  the  use  of  forensic 
formulae  obtained  among  the  semi-barbarous  tribes  who  gov- 

(0  Hickes,  Thes.  Diss.  Eplst.  in  notis,  p.  3. 

(k)  Spelm.  Gloss.,  tit.  Breve;  Cragii  Jus  Feud.,  lib.  n,  D.  17,  23,  25.  Selden's  notes  on 
Hengham. 

(0  Harrington  on  the  Ancient  Statutes,  88,  90 

(m)  Seld.  Diss.  ad  Fletam,  ch.  9,  sec.  1. 

(n)  Hickes,  Thes.  Diss.  Epist,  p.  8. 

(o)  See  Hole's  Hist,  of  Com.  Law  ch.  vi. 


NOTE  (2).  APPENDIX.  507 

erned  Europe  during  the  middle  ages,  at  least  among  the 
French  and  Lombards  —  nations  both  distinguished  among 
their  neighbors  by  the  superior  refinement  of  their  jurispru- 
dence, (p)  The  author  in  question,  who  speaks  of  the  Brevia 
of  Glanville  as  Brefs  Anglo-Normands,  from  their  equal  adop- 
tion in  both  countries,  points  out  their  similarity  to  certain 
forms  preserved  by  Marculphus,  and  which,  under  the  differ- 
ent names  of  prcBceptiones  and  indiculi,  were  used  among  the 
Pranks  during  the  two  first  races  of  the  monarchy.  (q)  The 
resemblance  in  their  general  conception  will  be  found  strong 
enough  to  lead  with  great  probability  to  the  inference  that 
the  English  brevia  were  derived  through  Normandy  from  a 
Francic  source,  an  inference  confirmed  by  the  fact  elsewhere 
stated  by  the  same  author,  that  at  this  early  period  the  judi- 
cial usages  of  Normandy  were  in  the  main  the  same  with 
those  of  France  at  large,  (r)  The  reader  may  judge  of  the 
degree  of  similarity  between  the  Brevia  of  Glanville  and  the 
praaceptiones  of  the  Franks  by  comparing  the  following  form- 
ulary from  Marculphus  with  the  first  of  the  English  speci- 
mens given  in  the  text,  viz.,  the  writ  of  right,  p.  66 :  "  Ille  Rex, 
vir  inluster,  illo  comiti.  Fidelis  Deo  propitio,  noster  ille,  ad 
praesentia  mnostrain  veniens,  clementiae  regni  nostri  suggessit 
eo  quod  pagensis  vester  ille,  eidem,  terrain  suam  in  loco  nun- 
cupante  illo,  per  fortiam  tulisset,  et  post  se  retineat  injuste, 
et  nullam  justitiam  ex  hoc,  apud  ipsum,  consequi  possit;  Prop- 
terea  ordinationem  presentem.  ad  vos  direximus,  per  quam 
omnino  jubemus,  ut  ipso  illo  taliter  constringatis,  qualiter,  si 
ita  agitur,  hanc  causam  contra  jam  dicto  illo,  legibus  studeat 
emendare.  Certe  si  noluerit,  et  ante  vos  recte  non  finitur, 
memorato  illo,  tultis  fidejussoribus,  Kalendas  illas,  ad  nostram 
eum  omnimodis  dirigere  faciatis  praesentiam."  (s) 

If  the  reader  will  take  the  trouble  to  inspect  the  Anglo- 
Norman  formula  in  the  original  Latin,  as  given  by  Glanville, 
he  will  find  that  it  has  the  decided  advantage  over  the  French 
model  in  point  of  latinity  and  precision  of  phrase;  the  latter 
being  indeed  in  such  a  barbarous  dialect  as  to  be  scarcely  in- 
telligible. 

(p)  J.  G.  Heinecc.,  Elm.  Germ.,  lib.  m,  tit.  n,  sees.  T.-rmr, 
(g)  Houard,  Anc.  Loix  des  Franc.,  etc.,  voL  n,  pp.  9-18. 
(r)  Houard,  Diet.  Analytique,  etc.,  verbo  Droit 
0»)  Marculpbi  Formularum,  lib.  i,  23. 


508  APPENDIX.  NOTE  (2). 

The  following  will  be  found  to  have  a  close  affinity  with 
the  Anglo-Norman  writ  of  trespass  for  an  assault,  which  see 
supra,  p.  81 : 

"  Ille  Eex,  vir  inluster,  illi.  Fidelis  noster  ille  ad  praesentiam 
nostram  veniens,  nobis  suggessit  quod  vos  eum,  nulla  manente 
causa,  in  via  adsalissetis,  et  graviter  livorassetis,  et  rauba  sua 
in  solidos  tantos,  eidem  tulissetis,  vel  post  vos  retineatis  in- 
debite,  et  nullam  justitiara  ex  hoc,  apud  vos,  consequere  possit. 
Propterea,  praesentem  indiculum  ad  vos  direximus,  per  quern 
omnino  jubemus  ut  si  taliter  agitur,  de  praesente  hoc  contra 
jam  dicto  illo,  legibus  studeatis  emendare.  Certe  si  nolueritis, 
et  aliquid  contra  hoc  habueritis  quod  opponere,  non  aliter  fiat 
nisi  vosmet  ipsi  per  hunc  indiculum  commoniti,  Kalendas  illas 
proximas,  ad  nostram  veniatis  praesentiam,  eidem  ob  hoc,  in- 
tegrum  et  legale  dare  responsum."  (t) 

The  opinion  that  the  English  Brevia  are  of  French  extrac- 
tion is  not  peculiar  to  Houard.  It  is  held,  as  has  been  already 
observed,  by  Lord  Chief  Baron  Gilbert;  and  a  writer  on  the 
feudal  law  —  the  learned  Craig  —  observes  of  them:  Usum  in 
Gallia,  antiquissimum  puto;  in  JSTormannia,  adhuc  in  usu  sunt. 
Gulielmus  Conquaastor  cum  armis,  etiam  leges  Normannicas, 
Anglias  intulit;  inde  factum,  ut  omnes  fere  causae  in  Anglia, 
adhuc  per  Brevia  deducantur.  (u) 

To  attempt  to  trace  them  farther  may  appear  superfluous; 
yet  it  may  be  observed  that  one  of  the  earliest  refinements 
in  forensic  science, was  that  of  classifying  the  various  subjects 
of  litigation  and  allotting  to  each  class  an  appropriate  formula 
of  complaint  or  claim;  a  method  devised  in  a  view,  probably, 
to  the  more  certain  definition  of  the  nature  of  those  injuries 
for  which  the  law  afforded  redress,  and  perhaps,  also,  to  save 
the  trouble  of  inventing  new  modes  of  expression  for  each 
particular  case  of  wrong  as  it  might  arise.  Whatever  the  ob- 
ject, it  is  certain  that  such  was  the  practice  of  ancient  Borne, 
and  that  from  a  period  almost  as  early  as  the  introduction  of  the 
laws  of  the  twelve  tables ;  (x)  and  so  severely  were  these  for- 
mulae observed,  that  any  deviation  from  them  was  fatal  to  the 
cause,  (y)  This  strictness  evidently  tended  to  injustice;  and 

(f)  Marc.  Form.,  lib.  I,  29. 

(u)  Crag.  Jus.  Feud.,  lib.  H,  D.  IT,  23,  25. 

(aQ  Dig.,  lib.  I,  tit.  2;  Cic.  pro.  Rose.  Com.,  ch.  8,  eta 

(y)  Quinctil.,  lib.  VII,  ch.  3;  Brisson  de  Formal.,  lib.  V,  XL. 


NOTES  (3),  (4).  APPENDIX.  509 

we  accordingly  find  that  it  was  banished  from  the  Roman 
law  by  Constantino,  who  abolished  the  judicial  formulae.  (2} 
Yet  form  was  not  altogether  extirpated.  Certain  general 
distributions  of  the  subjects  of  litigation  were  recognized 
under  the  title  of  actions,  (a)  and  considerable  attention  con- 
tinued to  be  paid  to  the  frame  and  wording  of  the  complaint.  (5) 
"When,  therefore,  we  find  the  rude  judicature  of  the  nations 
who  were  in  possession  of  Europe  at  the  fall  of  the  Roman 
Empire  exhibiting  at  a  very  remote  period  the  same  contriv- 
ance of  fixed  judicial  formulae,  we  are  naturally  led  to  refer  it 
to  an  imitation  either  of  the  ancient  or  more  modern  system 
of  their  predecessors.  Yet,  whether  it  were  the  result  of  such 
adoption  or  the  fruit  of  original  invention,  it  is  certainly  not 
easy,  nor  perhaps  very  important,  to  decide. 

NOTE  (3).     See  p.  140. 

Ejectment,  however,  has  been  latterly  often  ranked  as  a 
mixed  action,  (c)  because  the  plaintiff  has  judgment  for  spe- 
cific recovery  of  the  term  itself,  as  well  as  nominal  damages 
for  the  ejection.  With  deference,  however,  it  is  conceived 
that  the  class  of  an  action  depends  not  on  the  form  of  judg- 
ment, but  on  the  form  of  writ  and  declaration ;  and  that  the 
question  is,  not  whether  specific  recovery  be  adjudged,  but 
whether  it  be  claimed  in  the  form  of  the  proceeding.  (See 
the  definition  of  real  and  mixed  actions,  supra,  p.  61.)  Now, 
it  is  clear  that,  in  the  form  of  writ  and  declaration,  an  eject- 
ment is  no  more  than  a  species  of  the  action  of  trespass;  and 
as  such  it  has  been  most  anciently  considered.  Ejectione  fir- 
mae  n'  est  que  un  action  de  trespass  en  son  nature,  etc.  Fitz. 
Abr.,  tit.  Eject.,  firm.  2,  cited  3  Bl.  Com.  2uO. 

•   NOTE  (4).     See  p.  146. 

The  mode  of  making  the  objection  of  the  want  of  an  origi- 
nal writ  is  by  writ  of  error  on  the  judgment;  but  no  writ  of 
error  will  lie  in  respect  of  such  objection  if  the  judgment  was 
obtained  upon  a  verdict. 

(z)  Brisson,  ibid.,  lib.  V,  XL,  LHI;  Voet  ad  Pandect,  lib.  n,  tit.  YTTT,  see.  9. 
(a)  Inst,  lib.  IV,  tit.  6;  Car.  Sigon.  de  Judiciis. 
(6)  Vide  Inst.  and  Voet,  ubi  supra. 
(c)  Vide  3  BL  Com.  199. 
33 


510  APPENDIX.  NOTE  (5). 

It  is  to  be  observed  that,  when  this  objection  occurs  in  the 
common  pleas,  whero  the  prcBcipe  and  capias  are  framed  as 
in  trespass,  an  original  writ  prepared  according  to  such  prcecipe 
and  capias  will  not  suffice  unless  the  action  brought  be  really 
trespass ;  but  an  original  adapted  to  the  action  must  be  obtained 
(which,  as  there  is  no  prcecipe  to  warrant  it),  can  only  be  done 
by  petition  to  the  master  of  the  rolls,  (d) 

NOTE  (5).     See  p.  146. 

That  the  parties  appeared  personally  in  court  in  the  time  of 
Hen.  2  seems  sufficiently  proved  by  the  following  passages 
in  Glanville:  Utroque  litigantiura,  apparente  in  curia,  petens 
ipse  loquelam  suam  et  clarneum  ostendat,  in  hunc  modum  — 
Peto  versus  istum  JL,  etc.  Audita  vero  loquela  et  clameo 
petentis,  in  electione  ipsius  tenentis  erit,  se  versus  petentem  de- 
fendere  per  duellum,  etc.  (e)  Utroque  prmsente  in  curia,  is 
qui  petit,  jus  suum  in  haec  verba  versus  adversorium  suum  pro- 
ponat,  Peto,  etc.  Audito  autem  clameo,  etc.  (/}  The  forms 
of  expression  which  occur  in  Bracton  in  the  time  of  Hen.  III. 
everywhere  lead  to  the  same  conclusion.  For  example,  com- 
parentibus  tarn  petente  quam  tenente,  petens  actionem  qua 
agere  velit,  et  intentionem  suam,  proponere  debet  coram  Jus- 
titiaris,  etc.  Et  audito  Brevi  de  Recto,  dicat  sic  petens  vel 
ejiis  advocatus  in  prassentiam  Justitiariorum  pro  tribunali  resi- 
dentium.  Hoc  ostendit  vobis  A.,  etc.  (g) 

It  is  said  that  it  was  the  statute  of  Westminster  2  (13Ed.I.,ch. 
10)  which  first  gave  the  general  liberty  to  all  persons  of  suing 
and  defending  by  attorney;  and  that,  before  that  statute,  a  spe- 
cial warrant  from  the  crown  for  that  purpose  was  required.  (K) 
It  seems,  however,  that  this  is  only  to  be  understood  of  ap- 
pearance by  attorney,  and  not  to  the  conduct  of  the  suit  by 
attorney  after  appearance  once  made.  For  it  is  clear  that  long 
prior  to  the  13  Ed.  L,  and  even  in  the  time  of  Glanville,  a  party 
might,  upon  appearance  first  made  by  himself  in  person,  ap- 
point a  responsalis,  whose  office,  though  in  some  respects  dif- 

(d)  1  Sel.  Pract.  69;  Ibid.,  Introd.  xliv. 

(e)  Glan.,  lib.  2,  ch.  8. 
(/)  Ibid.,  lib.  4,  ch.  6. 
(g)  Bract.  872  b. 

(ft)  1  Tidd,  68  (4th  ed.);  Gilb.  C.  P.  32,  83;  2  Reeves.  109. 


NOTES  (6)-(8).  APPENDIX.  511 

ferent,  was  in  substance  the  same  with  that  of  an  attorney  — 
to  represent  him  during  the  subsequent  progress  of  the  cause; 
"  ad  lucrandum  vel  perdendum  pro  eo."  (i)  And  it  is  not  said 
by  Glanville  that  this  required  a  warrant  from  the  crown.  (Jc)  * 

NOTE  (6).     See  p.  146. 

For  proof  that  in  the  time  of  Hen.  II.  and  Hen.  III.  the 
pleading  was  oral,  it  will  be  sufficient  to  refer  to  the  passages 
«ited  from  Glanville  and  Bracton  in  the  last  note,  and  to  ob- 
serve that  not  the  least  allusion  is  made  in  either  author  to 
the  use  of  written  pleadings  —  the  introduction  of  which  is  gen- 
erally supposed  not  to  have  taken  place  till  the  middle  of  the 
reign  of  Edward  III.  (I) 

NOTE  (7).     See  p.  14T. 

As  to  the  practice  of  oral  pleading  among  the  Lombards, 
see  Muratori,  in  a  note  to  his  edition  of  the  Leges  Langobar- 
\dicae,  (ra)  where  he  says  that  the  pleadings  among  that  nation 
appear  to  have  been  non  scripto,  judici,  tradita,  sed  petitione 
verbali  pronunciata  coram  judicibus.  As  to  the  German  tribes 
in  general,  comprising  the  Franks,  see  the  Elementa  Juris  Ger- 
manici  (n)  of  Heineccius,  who  says :  formulas  non  scriptas  offer- 
•ebant,  sed  viva  voce  prgecinebant. 

NOTE  (8).     See  p.  147. 

The  use  of  professional  pleaders  or  advocates  may  be  traced, 
among  some  of  the  continental  nations,  to  a  period  extremely 
remote.  The  Lombards  had  the  following  law:  Si  forsitan 
aliquis  per  simplicitatem  suam,  causam  agere  nescit,  veniat  ad 
placitum,  et  si  Rex  aut  Judex  pra3viderit  quod  veritas  sit,  tuno 
debeat  dare  ei  hominem  qui  causam  ipsius  agat.  (0) 

In  the  Francic  Formulas  apud  Lindenbrog,  contained  in  the 
Capitularies  by  Baluzius,  there  is  a  record  of  a  cause  between 
a  bishop  and  a  private  individual,  where  the  bishop  pleads  by 
his  advocate,  and  the  other  in  his  own  person. 

(i)  Glan.,  lib.  11,  ch.  1. 

Cfc)  Vide  8  Rep.  58  b,  oca 

(I)  8  Reeves,  95. 

(m)  Murat.,  Script.  Rer.  ItaL,  voL  L 

(n)  Lib.  in,  tit.  iv,  sec.  CLVI. 

•(o)   Leges  Langobard.  apud  Lindenbrog,  650. 

1  See  note,  post,  p.  563. 


512  APPENDIX.  NOTE  (8). 

In  the  Assises  de  Jerusalem,  one  of  the  most  curious  and 
important  relics  of  the  jurisprudence  of  the  middle  age,  and 
fully  recognized  as  an  authentic  compilation  from  the  laws  of 
France,  made  towards  the  close  of  the  eleventh  centun7-,  (p) 
we  have  a  full  account  of  the  office,  duties  and  proper  qualifi- 
cations of  a,  pleader:  Doit  chaScum  de  ceaus  qui  veont  pleideer 
en  la  haute  court,  demander  conseill  au  seignor,  avant  que  il 
comance  a  pleideer.  Tl  doit  demander  au  seignor,  a  conseil, 
le  ineillour  pleideoir  de  la  court  a  son  escient,  se  il  est  pleideoir 
ou  se  il  ne  1'  est ;  pour  ce  que  se  il  ne  est  pleideoir,  que  son  con- 
seill li  sache  sa  raison  garder  et  sa  querele  desreigner  de  ce 
dont  il  est  requerior,  et  deffendre  de  ce  dont  il  est  deffendoir, 
et  se  il  est  pleideoir,  pour  ce  que  il  ait  plus  de  conseil,  qu'il 
n'est  nul  si  sage  pleideoir,  qui  ne  puisse  bien  souvent  estre 
averti  el  plait  de  ce  que  bon  li  est,  par  un  autre  pleideoir  o  lui; 
que  deus  pleideoirs  savent  plus  que  un,  etc.  Ch.  ix.  .  .  . 
Qui  a  conseill  et  se  veaut  clamer  d'ome  ou  de  feme  qui  est 
present  en  la  court,  il  doit  faire  dire  par  son  conseill,  au 
seignor,  si  que  celui  de  qui  il  se  clame  ou  veant  clamer,  1'oye, 
Sire  tel  se  clame  a  vous  de  tel  chose,  et  en  veaut  avoir  droit 
par  vous  et  par  la  court;  et  le  nome,  et  die  quoi  il  se  clame, 
et  as  plus  brief ves  paroles  que  il  pora,  face  son  clame,  etc. 
Ch.  xxvii.  II  convient  a  celui  qui  est  bon  pleideoir  et  soutill, 
que  il  soit  sage  de  son  naturel,  et  que  il  ait  esprit  sein,  et 
soutill  engin,  et  que  il  ne  soit  doutif,  ne  esbay,  ne  hontous,  ne 
hatif,  ne  non  chaillant  el  plait,  ne  que  il  ait  s'entente  ne  sa 
pencee  aillors  tant  com  il  pleidoie,  et  que  il  se  garde  de  se  trop 
corroucer  ne  agrier  ne  ehmouvoir  en  pleidoiant.  Ch.  xxiv. 
As  a  translation  of  this  barbarous  dialect  may  save  the  reader 
some  trouble,  the  following  very  literal  one  is  offered :  "  Every 
person  about  to  plead  in  the  supreme  court  ought,  befor6  he 
begins,  to  pray  the  lord  to  appoint  him  counsel.  He  ought 
to  pray,  for  his  counsel,  the  best  pleader  in  the  court ;  and 
this  whether  he  is  himself  a  pleader  or  not ;  because,  in  the 
latter  case,  he  will  need  counsel  to  defend  his  right,  and  es- 
tablish his  claim  or  defense;  and  even  in  the  former  he  will 
do  well  to  have  counsel,  since  there  is  no  pleader  so  wise  that 
he  may  not  be  often  advised,  on  his  pleading,  by  another 
pleader,  as  two  pleaders  know  more  than  one,  etc.  He  who 

(p)  See  the  opinion  of  Mably,  in  his  Observations  sur  THistoire  de  France,  vol.  2,  p.  840. 


NOTE  (8).  APPENDIX.  513 

has  counsel,  and  wishes  to  make  claim  on  some  man  or  woman 
present  in  court,  ought  to  say  by  his  counsel  to  the  lord,  so 
that  the  other  party  may  hear:  Sir,  such  an  one  makes,  be- 
fore you,  such  a  claim,  and  hopes  to  obtain  justice  in  that 
behalf  from  you  and  the  court ;  and  then  he  should  say  what 
he  claims,  and  in  the  shortest  way  possible,  etc.  A  good 
pleader  ought  to  have  good  sense,  a  sound  understanding  and 
a  subtle  genius;  he  should  be  free  from  the  faults  of  inde- 
cision, timidity,  false  shame,  haste  and  nonchalance ;  while  he 
pleads  he  should  keep  his  attention  from  wandering  to  any 
other  subject,  and  should  also  take  care  to  avoid  undue  heat 
and  asperity."  Some  of  these  admonitions  seem  to  deserve 
the  attention  of  the  nineteenth,  no  less  than  the  eleventh, 
century. 

The  use  of  advocates  was  not  confined  to  the  Franks  and 
^Lombards.  It  obtained,  at  the  same  period,  among  the  con- 
tinental nations  in  general.  Heineccius  speaks  of  them  as 
generally  allowed  throughout  the  German  tribes,  though  under 
permission  to  be  previously  obtained  from  the  judge,  which, 
as  he  incidentally  observes,  explains  the  modern  practice  of 
not  allowing  all  persons  indiscriminately  to  plead  causes,  but 
confining  the  privilege  to  a  certain  number  appointed  by  au- 
thority, (q)  "With  respect  to  the  Franks  in  particular  he  says : 
In  foro  litigantibus  eo  magis  opus  erat  jurisperitorum  auxilio, 
quo  pluribus  formularum  ac  sollemnitatum  tricis,  implicata 
erat  eorum  jurisprudentia;  et  quo  facilius  in  his  verbis  labi 
possunt  homines  plebeii,  et  aliis  distracti  negotiis.  (r)  He 
makes  a  similar  remark  as  to  the  Lombards :  Quum  enim  et  hoc 
gens  paullo  plus  tribueret,  juri  subtiliori,  et  formulario,  homi- 
nes plebeii  et  harum  rerum  imperiti,  vix  poterant  advoca- 
torum  jurisperitorum  opera  carere.  (*) 

Hachenberg  also  lays  it  down  as  a  general  feature  in  the 
judicial  system  of  the  Germans  of  the  middle  ages:  Aderant 
in  judicio  advocati — quos  Clamatores  et  Ferendarios  priscse 
leges  vocant  —  qui  causas  litigantium  nuda  simplicique  ora- 
tione,  sine  ullo  verborum  circuitu,  tractare  jubebantur.  (t) 

In  England  it  appears  that  there  were  persons  learned  in  the 

(q)  Elem.  Jur.  Germ.,  lib.  in,  tit.  u,  sec.  xoix. 

(r)  Ibid.,  sec.  LXXXII. 

(s)  Ibid.,  sec.  LXXXIII. 

U)  Hacii.  Germ,  Media,  p.  97.          ' 


514  APPENDIX.  NOTE  (9). 

law,  and  skilful  in  pleading  causes,  at  least  as  early  as  the 
reign  of  William  Ruf  us ;  (u)  and  Bracton  makes  express  men- 
tion of  counsel,  pleaders  and  advocates  in  the  reign  of  Hen. 
III.  (a?)  And  not  only  were  such  professional  persons  em- 
ployed, but  (as  stated  in  the  text)  the  rule  seems  to  have  been 
already  established  excluding  all  but  regular  advocates  or 
barristers  from  pleading  in  causes  in  which  they  were  not 
personally  concerned.  This  point  appears  to  be  sufficiently 
proved  even  by  the  following  extract  from  the  Placitorum 
Abbreviation  —  a  compilation  published  a  few  years  since, 
from  our  earliest  judicial  records :  Abell.  de  Sancto  Martino 
venit  et  narravit  pro  Episcopo.  Et  nonfuit  Advocatus.  Ideo 
in  misericordia.  Custodiatur.  (y)  And  additional  evidence 
of  the  same  proposition  is  supplied  by  the  following  curious 
passage  in  the  YitaB  viginti  trium  Sancti  Albani  Abbatum,  by 
the  historian,  Matthew  Paris  —  written  about  the  same  period 
with  the  preceding  extract.  After  complaining  of  certain 
oppressions  which  the  abbey  had  sustained  from  a  person 
protected  and  encouraged  by  John  Mansel,  the  historian  pro- 
ceeds: Nee  quicquam  juris  vel  ultionis  assistente  meinorato 
Johanne  Regis  lateribus  et  conciliis,  potuimus  obtinere.  Qui- 
nimo,  metus  et  persuasio  ipsius  Johannis,  omnium  Justiciario- 
rum  et  placitantium  Advocatorum  (guos  Band  narratores, 
vulgariter  appellamus)  ora  penitus  obturavit.  Ita  ut  multo 
totiens  oportuit  Doininum  Willielmum  tune  cellarium  (virum 
scilicet  circumspectum  et  facundum)suum  sermonem  et  quere- 
lam  in  persona  propria  coram  Justiciariis,  imo  etiam  coram 
Rege  et  Barnagio  proponere.  Et  protestati  sunt  Justiciarii, 
secretius  in  aure  dicti  Domini  Willielmi  instillantes, —  quod 
duo  tune  temporis  in  regno  dorninabantur  —  scilicet  Comes 
Richardus,  et  Johannes  Mansel  —  contra  quos  non  audebant 
sententiare.  (0) l 

NOTE  (9).     See  p.  147. 

All  the  authorities  prove  that  questions  of  law  have  at  all 
times  been  the  exclusive  province  of  the  judges.  Thus,  in  the 
Placitorum  Abbreviatio,  there  is  an  entry,  in  the  sixth  year 

(M)  1  Reeves,  228. 

(x)  Bract.  412  a,  372  b. 

(y)  Plac.  Ab.  137;  Kane.,  rot.  22  (temp.  38  Hen.  8). 

(*)  Matt.  Par.  Hist.,  p.  1077. 

1  See  note,  post,  p.  563. 


NOTKS  (10),  (11).  APPENDIX.  515 

of  Eichard  L,  that,  sub  judicibus  lis  et  contentio  fuit,  utrum 
carta  praedicta  debet  teneri  versus  puerum  qui  infra  aetatem, 
etc.  (a) 

And  again,  in  the  fourth  year  of  King  John,  the  jury,  upon 
an  inquisition,  declare:  non  pertinet  ad  eoa  de  jure  discer- 
nere.  (J) 

NOTE  (10).     See  p.  148. 

This  phrase,  of  issue,  occurs  at  the  very  commencement  of 
the  Year-books,  but  the  author  has  not  traced  it  to  an  earlier 
period.  In  some  instances  the  expression,  isser  d'empler, 
occurs,  which  may  be  translated  to  get  out  of,  or  finish  the 
pleading,  and  clearly  marks  the  meaning  and  derivation  of  the 
term  issue. 

In  the  reign  of  Edward  IY.  we  find  the  Latin  term  thus 
regularly  defined :  Exitus  idem  est  quod  finis,  sive  determi- 
natio  placiti.  Year-book,  21  Ed.  IY.,  35. 

It  is  observable  that  the  parallel  word  Jin  appears  to  have 
been  used  in  the  same  sense  in  Normandy.  See  Commenta- 
ries de  Terrien,  lib.  IX,  ch.  XXYI. 

The  terms,  issue  en  ley  and  issue  enfet,  occur  as  early  as  the 
third  year  of  Edward  II.  See  the  Year-book,  3  Ed.  II.,  59. 

NOTE  (11).     See  p.  149. 

The  origin  of  the  practice  of  recording  (another  peculiarity 
of  the  English  law)  appears  to  have  eluded  our  legal  anti- 
quarians as  much  as  that  of  the  Brevia;  but  it  is,  no  doubt, 
referable  to  the  same  source.  The  term  record  is  itself,  in  its 
immediate  derivation,  French ;  and  the  law  of  records  is  copi- 
ously discussed,  under  that  name,  in  the  Grand  Coustumier, 
the  most  ancient  depository  of  the  Norman  customs.  The 
manner  in  which  it  is  there  treated  might  alone  be  sufficient 
to  show  that  France  was  its  native  soil,  and  that  it  had  not 
been  adopted  from  the  English  courts ;  not  only  because  no 
allusion  is  there  made  to  any  recent  introduction  of  the  prac- 
tice, but  because  the  practice  appears,  in  the  Norman  courts, 
in  a  shape  obviously  more  consonant  with  the  original  mean- 
ing and  derivation  of  the  term  than  that  which  it  bears  in 

(a)  Plac.  Ab.  5;  Warr.'  temp.  6  Ric.  1. 

(b)  Plac.  Ab.  40;  Lone.1  temp.  4  Julian. 


516  APPENDIX.  NOTE  (11). 

England.  For  it  appears  that,  in  the  Norman  law,  recorder 
anciently  signified  to  recite  or  testify  on  recollection,  as  occa- 
sion might  require,  what  had  previously  passed  in  court;  and 
that  this  was  the  duty  of  the  judges  and  other  principal 
persons  who  presided  at  the  Placitum  —  thence  called  record- 
eurs.  On  the  other  hand,  we  find  faint  vestiges  only  of  this, 
the  proper  and  ancient  meaning,  existing  in  England.  Of 
these  vestiges,  one  example  occurs  in  our  phrase  of  recorder,  as 
applied  to  a  borough  judge,  which  is  plainly  a  derivative  or 
secondary  application  of  the  Norman  word  recordeur;  and  an- 
other that  may  be  mentioned  is  the  principle  anciently  recog- 
nized, that  the  record  is  properly  not  in  the  parchment,  but  in 
the  breast  of  the  judge.  Thus  we  find  it  said  in  the  Year-book, 
7  Hen.  YL,  p.  29 :  Le  Record  est  tout  temps  en  le  coeurs  de 
Justices,  et  le  Roll  n'est  forsque  remembrance  pur  le  melior 
suerty.  But  what  decisively  removes  all  doubt  as  to  the 
national  character  of  this  judicial  practice  is,  that  while  no 
trace  of  it  is  to  be  discovered  among  the  Anglo-Saxons 
(for  their  loose  historical  notices,  now  extant,  of  some  few 
important  controversies,  are  evidently  of  a  quite  different 
kind),  (c)  it  existed  in  the  law  of  France  at  large,  at  least  as 
early  as  at  the  Norman  conquest,  and  in  a  shape  exactly  simi- 
lar to  that  which  it  bore  in  Normandy.  It  is  one  of  the  direc- 
tions given  to  litigants  in  the  Assises  de  Jerusalem  (compiled 
as  early  as  1099.  and  presumably  referring  to  a  state  of  law 
some  time  established),  that  they  should  collect  as  many  of 
their  own  friends  as  possible  in  court,  and  request  them  to  be 
attentive  to  what  is  said  with  a  view  of  enabling  themselves 
to  retain  and  record  it  properly  at  the  time  of  judgment  or 
trial.  Qui  veaut  tost  son  plait  atteindre,  il  doit  faire  estre 
en  la  court,  tant  de  ses  amis  com  il  pora,  et  prier  les  que  il 
soient  ententis  as  paroles  qui  seront  dites  as  plais,  et  bien  en- 
tendre et  retenir, —  si  que  il  sachent  bien  le  recorder,  as  esgars 
et  as  connoissances,  se  mestier  li  est.  (d)  It  is  also  recom- 
mended that  if  there  should  be  an  adjournment  of  the  pro- 
Co)  See  the  Apographum  Saxonicum,  published  by  Hickes  (Thes.  Diss.  Epist.,  p.  2),  and 
the  observations  on  that  instrument  by  Hallam  (vol.  2,  p.  141).  See,  also,  the  plea  in  the 
County  Court,  between  Qundulf  and  Pichot  (Hickes,  Thes.  Diss.  Epist.  33),  and  the  plea  of 
Pinenden,  to  the  County  Court,  to  the  reign  of  William  L,  mentioned  by  Lord  Coke  (pref an« 
to  9  Rep.)  — the  narratives  of  which  are  all  to  the  same  style. 
(d)  Assises  de  Jerusalem,  xlir. 


NOTE  (11).  APPENDIX.  617 

ceedings  and  a  farther  day  appointed  for  the  hearing  of  the 
parties,  both  the  plaintiff  and  defendant  should  take  care  to 
put  down  in  writing  the  nature  of  the  claim  that  has  been 
made,  the  day  and  place  of  the  adjournment,  and  the  names 
of  those  who  were  present  at  the  first  hearing;  and  the  plaint- 
iff is  advised  to  rehearse  this  writing,  before  the  adjournment 
day,  to  such  of  those  persons  as  he  considered  most  friendly 
to  himself,  in  order  to  refresh  their  memories  and  enable 
them  to  testif}r  (recorder]  at  the  adjourned  meeting  if  it  should 
be  necessary,  both  the  day  and  place  of  the  adjournment,  and 
the  words  in  which  the  claim  or  other  allegations  were  first 
made,  it  being  assigned  as  a  reason  for  this  particularity  that 
a  variance  from  the  claim  first  made  would  entitle  the  defend- 
ant to  a  new  enlargement  of  the  time  for  answering,  (e)  It  is 
easy  to  conceive,  though  not  to  trace,  the  progress  by  which 
the  occasional  memorandum  thus  drawn  up  by  the  Francic 
pleader,  to  confirm  the  recollection  of  his  judges,  took  the 
shape  of  an  official  contemporaneous  minute  of  the  proceed- 
ings, and  no  longer  merely  subordinate  to  a  record  or  judicial 
report, —  became  itself  invested  with  that  name  and  character. 
Whether  this  change  had  fully  taken  place  at  the  date  of  Glan- 
ville's  treatise  (in  the  reign  of  Hen.  II.)  that  work  does  not 
enable  us  accurately  to  decide.  He  speaks,  indeed,  frequently 
of  records,  and  lays  down  the  maxim  that  the  curia  regis 
and  no  other  court  was  properly  and  generally  a  court  of  rec- 
ord ;  (f )  but  it  is  not  clear  whether  the  written  memorial, 
though  already  designated  as  the  record  and  officially  pre- 
pared, was  made  contemporaneously  with  the  proceedings 
themselves  or  considered  as  intrinsic  evidence  of  them,  or  in 
any  other  light  than  as  an  aid  to  the  memory  of  judicial  re- 
porters. However  we  find  that  at  least  very  shortly  after 
this  period  the  practice  of  recording,  in  the  present  sense  of 
the  term,  was  in  full  operation.  The  series  of  record,  now 
extant,  begins  with  the  reign  of  Ric.  I.  (g)  Curious  extracts 
from  some  of  the  earliest  of  them  have  been  printed  and  are 
to  be  seen  in  the  Placitorum  Abbreviatio. 

The  following  passage,  in  an  able  publication,  confirms  the 

(e)  Ibid.,  xlix. 

(/)  Sciendum  quod  nulla  curia  recordum  habet  generaliter  prater  curiam  dominl  regis. 
<31an.,  lib.  8,  ch.  9. 

(g)  See  the  Report  of  the  Commissioners  on  Public  Records. 


518  APPENDIX.  NOTES  (12),  (13). 

account  that  the  author  has  above  given  of  the  origin  and 
true  meaning  of  recording.  In  reference  to  the  laws  of  the 
Scandinavians  it  is  observed :  "  No  record  or  register  authen- 
ticated the  judgment  of  the  court,  which  was  preserved  only 
by  the  recollection  and  knowledge  of  the  judges  who  pro- 
nounced the  decree,  or  of  the  assembled  people  who  ratified 
the  sentence.  This  usage  of  oral  pleadings  and  of  proving 
legal  proceedings  by  oral  testimony  might  be  thought  to  be 
inconsistent  with  the  assumption  of  the  antiquity  of  written 
laws  in  Scandinavia,  did  we  not  know  that  the  same  practice 
was  adopted  by  other  systems  of  jurisprudence  which  are 
more  familiar  to  us,  such  as  the  Custumal  of  Normandy  and 
the  assizes  of  the  kingdom  of  Jerusalem.  In  Normandy  a 
judgment  pronounced  by  the  king,  sitting  as  Duke  of  Nor- 
mandy, was  recorded  by  his  testimony  added  to  that  of  one 
witness,  or  the  royal  judge  might  substitute  three  other  wit- 
nesses in  his  stead;  seven  witnesses  were  required  for  the 
record  of  the  exchequer  of  the  assise.  In  these  proofs  it  is 
qlear  that  the  compilers  of  the  Custumal  did  not  contemplate 
the  production  of  any  written  document  as  evidence  of  past 
decrees  or  proceedings.  The  recorders  swore  as  to  what  they 
had  heard  and  what  had  been  said,"  etc. —  Edinburgh  Reoiew 
for  August,  18W. 

NOTE  (12).     See  p.  149. 

It  is  to  be  observed,  on  the  subject  of  suing,  appearing,  or 
defending  by  attorney,  that  there  are  certain  persons,  viz. : 
infants,  married  women  (when  sued  without  their  husbands), 
and  idiots,  who  are  incapable  of  appointing  an  attorney  to  ap- 
pear for  them  in  court.  The  appearance  and  pleadings  of  such 
persons  must  consequently  not  purport  to  be  by  attorney, 
nor  be  so  entered  on  record,  whether  an  attorney  be  in  fact 
employed  or  not.  As  for  the  mode  in  which  the  appearance 
and  pleadings  of  such  persons  should  be  entered,  see  1  Tidd, 
68,  75;  1  Arch.  Pract.  22. 

NOTE  (13).    See  p.  150. 

There  can  be  no  pleading  till  appearance  is  effected.  And, 
in  a  personal  action,  there  can,  till  then,  be  no  judgment  given, 
nor  other  act  done  in  court  beyond  the  issuing  of  the  process. 


NOTE  (14).  APPENDIX.  519 

But  in  a  real  action,  if  the  tenant  hold  out  against  the  process 
and  fail  to  appear,  judgment  will  pass  against  him,  and  the 
demandant  will  recover  the  land.  See  Booth,  12, 19,  24,  etc.  \ 
Com.  Dig.,  Pleader  (Y.);  2  Saund.  43,  n.  1. 

NOTE  (14).     See  p.  152. 

Besides  these  changes  in  the  practical  method  of  conducting 
the  pleadings,  it  may  be  proper  to  notice  the  alterations  that 
have  taken  place  in  the  tongue  or  language  used. 

It  has  been  the  general  opinion  (h)  that,  among  the  badges 
of  servitude  imposed  by  the  Conqueror,  was  the  introduction 
of  the  French  language  by  his  command  into  the  courts  of 
justice ;  but  an  ingenious  and  learned  writer  (i)  has  contro- 
verted this  notion  with  great  plausibility,  and  doubts  whether 
that  language  were  used  in  the  courts  till  a  much  later  period. 
That  the  French  was  not  introduced  by  command  his  argu- 
ments render  extremely  probable;  but  on  the  other  hand,, 
when  the  history  of  the  conquest  is  recollected,  there  are 
many  obvious  reasons  for  supposing  that  the  curia  regis,  or 
superior  court  of  justice  (which  was  itself  of  Norman  intro- 
duction), (&)  would  follow  in  its  pleadings  the  language  of  the 
conquerors,  and  the  considerations  adduced  by  this  author  are 
not  sufficient  to  outweigh  the  probability  of  that  supposition. 

It  is  however  clear  beyond  dispute,  that  whatever  was  the 
most  ancient  language  of  the  pleading,  the  record  was,  from 
the  earliest  period  to  which  that  kind  of  document  can  be 
traced,  in  the  Latin  language.  For  this  it  is  sufficient  to  refer 
to  the  still  extant  series  of  records  from  whence  the  Placitorum 
Abbreviatio  is  extracted ;  though  Blackstone  seems  to  have 
fallen  into  an  error  on  this  subject  and  to  have  supposed  that 
the  enrolment  in  Latin  began  with  the  statute  36  Ed.  III.,  ch. 
15,  and  in  pursuance  of  its  provisions.  (I) 

It  is  clear,  too,  that  the  pleading  was  in  French,  if  not  from 
the  Conquest,  at  latest  from  the  time,  of  John  or  Edward  I.,  (m) 
and  so  remained  till,  by  the  statute  of  36  Ed.  III.  (st.  1,  ch.  15), 

(fc)  2  Reeves,  449;  4  BL  Com.  416. 

(i)  1  Reeves,  46. 

(*)  See  Law  Tracts,  by  Mr.  Luders. 

CD  See  3  BL  Com.  518,  518. 

(m)  Lnders,  ubi  supra. 


520 


APPENDIX. 


NOTE  (15). 


it  was  enacted  that  thenceforth  the  pleading  should  be  no 
longer  in  French,  but  in  English,  and  should  continue  to  be 
enrolled  or  recorded  in  Latin.  Afterwards,  on  the  introduc- 
tion of  paper  pleadings,  they  followed,  in  the  language  as  well 
as  in  other  respects,  the  style  of  the  record,  and  were  there- 
fore drawn  up  in  Latin.  This  continued  to  be  the  practice  till 
a  period  so  late  as  4  Geo.  II.,  ch.  26,  when  it  was  provided  that 
"both  the  pleadings  and  the  record  should  thenceforward  be 
framed  in  English,  and  it  is  in  this  language  that  they  have 
since  been  drawn;  the  ancient  terms  of  art  and  forms  of 
expression,  which  had  been  so  long  known  exclusively  in  a 
French  and  Latin  dress,  being  now  literally  translated  into 
English,  but,  with  that  exception,  remaining  undisturbed. 

NOTE  (15).     See  p.  153. 

The  practice  of  framing  the  allegations  in  the  cause  accord- 
ing to  technical  rule  and  method,  or,  in  other  words,  the 
science  of  pleading,  was  no  doubt  derived  from  the  same  sys- 
tem of  jurisprudence  with  the  writ  itself,  viz. :  from  that  of 
Normandy.  Vide  supra,  note  (2).  It  is  certain,  at  least,  that 
the  use  of  stated  forms  of  pleading  is  not  to  be  traced  among 
the  Anglo-Saxons;  and  the  general  account  given  by  the 
learned  Hickes  of  their  manner  of  litigation  is  as  follows: 
Quisque  causam  suam  sine  solennioribus  juris  formulis,  vel 
ipse  agebat,  vel  causidicum  et  patronum  sibi  adscivit;  quern 
amicitia,  quern  propinquitas,  quern  charitas,  aut  benevolentia, — 
vel  denique  quern  sors  ipsa,  nonnunquara, —  obtulerit.  (n)  And 
the  specimen  he  gives  of  the  proceedings  in  a  county  court,  in 
the  time  of  Canute,  (o)  strongly  corroborates  the  opinion  that 
they  were  strangers  to  any  regular  or  artificial  forms  of  state- 
ment. On  the  other  hand,  it  appears  that  such  forms  were 
known  among  that  great  family  of  continental  tribes  of  which 
the  Franks  stood  foremost  in  forensic  refinement.  Actor 
breviter  proponebat  actionem,  simili  fere  formula  qu£  olim 
Komani  uti  solebant.  Quemadmodum  enim  hi  non  prolixis 
libellis  actiones  intentabant,  sed  formulis  utebantur,  quas  vel 
jure-consulti  vel  praetores  prodiderant ;  e.  g.,  aio  hunc  f undum 

(n)  Hickes,  Thes.  Diss.  Epist,  p.  8. 
(o)  Ibid.,  p.  1 


NOTES  (16)-(18).  APPENDIX.  521 

qui  in  Campania  est,  meura  esse  ex  jure  Quiritium  —  aio  Titium 
mihi  centum  ex  mutuo  dare  oportere,  etc.,  ita  simili  brevitate 
magnopere  delectatos  esse  animadvertimus  majores  nostros. 
Tales  sane  sunt  formulae  agendi  in  lege.  Alam.,  etc.  (p) 

NOTE  (16). 

An  anonymous  author,  in  Hargrave's  Law  Tracts,  observes 
on  this  subject :  "  I  do  not  blame  them  "  (the  king's  bench) 
"  for  the  latitat,  or  the  exchequer  for  the  quo  minus.  But  I 
must  say  the  first  invention  of  these  tricks  was  neither  hon- 
est nor  justifiable.  However,  they  are  established,"  etc. 

He  afterwards  observes  that  these  usurpations  grew  by  slow 
degrees  and  crept  silently  into  practice.  "  Who  can  show 
the  time  when  this  writ "  (the  quo  minus)  "  first  issued  upon 
a  mere  surmise,  or  who  can  tell  that  man's  name  who  was 
first  arrested  by  a  latitat,  etc.?  If  these  fictions  had  in  their 
beginnings  been  opposed  and  withstood,  I  cannot  think  it  pos- 
sible that  the  judges  would  have  countenanced  so  gross  a  false- 
hood." (#) 

NOTE  (17).     See  p.  177. 

A  demurrer  cometh  from  the  Latin  word  "  demorari, —  to 
abide;  and  therefore  he  which  demurreth  in  law  is  said  he 
that  abideth  in  law :  moratur  or  demoratur  in  lege"  (r) 

We  find  from  the  year-books  that  the  pleaders  sometimes 
put  themselves  upon  the  judgment  of  the  court,  upon  a  mat- 
ter of  law,  in  the  following  form  of  words :  "  Nous  demur- 
roins  en  vos  discretions  si  nous  etions  mest  a  respond,"  etc.  («) 
This  expression  clearly  indicates  the  manner  of  the  derivation. 

NOTE  (18).     See  p.  177. 

This,  it  will  be  observed,  is  a  narrower  sense  of  the  term  to 
plead  than  it  otherwise  bears ;  for  in  its  more  general  mean- 
ing, as  elsewhere  stated,  (t)  it  imports  making  any  allegation 
in  the  cause,  and  so  taken  would  include  the  case  of  a,  de- 
murrer or  a  declaration. 

(p)  Heinecc.  Elem.  Jur.  Germ.,  lib.  m,  tit  IT,  sec.  CLTl 

(9)  Harg.  Law  Tracts,  p.  423. 

(r)  1  Ed.  2, 8. 

(«)  Co.  Litt  71  b. 

(0  Fide  supra,  note  (IX 


»22  APPENDIX.  NOTES  (19)-(21). 

NOTE  (19).     See  p.  177. 

Exceptionum  quaedam  sunt  dilatorise,  quaedam  peremptoriaB ; 
et  haec  est  prima  et  brevis  divisio.  (u)  This  division  was  bor- 
rowed from  the  canon  or  civil  law.  Thus  it  is  said  by  the 
Canonists:  Est  summa  exceptionum  divisio,  quod  aut  sunt 
dilatoriaa,  aut  peremptoriae.  (x)  And  it  is  laid  down  in  the 
Digest:  Exceptiones  aut  perpetuaa  et  peremptoriaa  sunt,  aut 
temporales  et  dilatoriae.  (y) 

NOTE  (20).     See  p.  178. 

"  Pleas  are  variously  distinguished.  The  more  general  di- 
vision of  them  is  that  of  being  dilatory  or  peremptory;  or 
they  are,  first,  pleas  in  abatement;  secondly,  such  as  suspend 
the  action ;  or  thirdly,  such  as  bar  the  action  forever."  (z) 

"  The  plea  is  either  to  the  jurisdiction  of  the  court,  or  sus- 
pending the  action,  as  in  the  case  of  parol  demurrer,  or  in 
abatement,  or  in  bar  of  the  action."  (a) 

The  pleas  to  the  jurisdiction  are  frequently  mentioned  as 
pleas  in  abatement,  but  inaccurately;  for  in  their  form  they 
are  not  pleaded  as  grounds  for  abating  the  writ,  but  for  refus- 
ing to  answer  in  the  court  in  which  the  action  is  brought.  It 
is  true  that  in  their  effect  they  abate  the  writ,  for  they  defeat 
the  action ;  but  the  case  is  the  same  with  pleas  in  bar,  which 
are  yet  essentially  distinguished  from  pleas  in  abatement. 
"  A  plea  to  the  jurisdiction  is  not  properly  a  plea  in  abate- 
ment though  in  its  consequence  it  be  so,  and  therefore  is  to 
have  its  proper  conclusion,  as  respondere  non  debet,  or  si  curia 
cognoscere  velit,  and  not  quod  billa  cassetur."  (b) 

All  dilatory  pleas,  including  those  in  suspension,  as  well  as 
pleas  to  the  jurisdiction,  are  sometimes  inaccurately  classed 
as  pleas  in  abatement. 

NOTE  (21).     See  p.  180. 

Parol  demurrer  may  be  founded  on  the  nonage  of  either 
.party  in  some  real  actions.  In  personal  actions  it  extends  to 

(u)  Bract.  399  b. 

(x)  Oorvin.  Jus.  Canon.,  lib.  8,  tit.  82. 

(y)  Dig.,  lib.  44,  tit.  i,  sec.  8. 

(z)  Bac.  Ab.,  Pleas,  etc.  (A.). 

(a)  1  Chitty,  243.    See,  also,  Bac.  Ab.,  ubi  supra;  Bract.  899  b. 

<&•>  Bac.  Ab..  Pleas,  etc.  (E.)  2.    See  5  Mod.  146;  Carth.  363;  1  Satt.  287. 


NOTES  (22)-(24).  APPENDIX.  523 

the  case  of  the  defendant  only ',  and  that  in  very  few  instances. 
See  as  to  parol  demurrer,  Bac.  Ab.,  tit.  Infancy  and  Age  (L.). 

Another  plea  which  operates  in  suspension  of  the  suit  is 
that  of  aid  prayer;  as  to  which  see  Com.  Dig.,  Aide  (B.  5), 
(B.  6);  Booth,  60;  2  Bos.  &  Pul.  384. 

Excommunication  of  the  plaintiff  is  another  plea  in  suspen- 
sion. See  1  Chitty,  450;  Eeg.  Plac.  179,  180. 

NOTE  (22).     See  p.  181. 

A  plea  in  abatement  is  called  by  Bracton  exceptio  ad  "brew 
prosternendum;  (c)  and  is  described,  about  the  same  time,  in 
French,  as  exception  pur  Irefe  dbatre;  (d)  whence  the  words 
abate  and  abatement. 

Cassare  was  another  word  applied,  as  well  as  prosternere,  to 
express  the  abatement  of  the  writ ;  (e)  and  from  cassart  is  de- 
rived to  quash,  as  to  abate  from  abattre. 

NOTE  (23).     See  p.  184. 

Originally,  the  pleas  to  the  person  were  not  considered  as 
plea  in  abatement  of  the  writ ;  for  they  are  classed  by  Bracton 
and  others  as  distinct  from  the  exceptiones  ad  breve  prosternen- 
dum. And  indeed  at  this  day  they  are  pleaded  (as  observed 
in  the  text),  not  as  reasons  for  abating  the  writ,  but  for  not 
answering;  (f)  and  it  seems,  therefore,  that  they  are  improp- 
erly classed  as  pleas  in  abatement.  In  more  modern  times, 
however,  they  have  been  uniformly  so  ranked  and  consid- 
ered ;  (y)  and  they  have  the  same  effect,  and  are  subject  to  the 
same  rules,  with  pleas  in  abatement  properly  so  called. 

NOTE  (24).    Seep.  1ST. 

"We  may  here  take  occasion  to  notice  two  rules,  not  properly 
of  pleading,  but  of  practice,  by  which  the  use  of  dilatory  pleas 
is  considerably  restrained. 

First,  they  must  be  verified  by  affidavit;  or,  at  least,  some 

(c)  Bract.  481  b. 

(d)  Britton,  48. 

(e)  See  Hengham's  Summa. 

(/)  Co.  Litt.  188  a;  Com.  Dig.,  Abatement  (L  12).    And  see  the  example,  p.  185. 
<0)  See  Dock  PL  1. 


524:  APPENDIX.  NOTES  (25),  (26). 

probable  matter  must  be  shown  to  the  court  to  induce  it  to 
believe  that  the  fact  of  the  plea  is  true.  This  is  by  4  Ann, 
ch.  16,  sec.  11.  Secondly,  they  must  be  pleaded  within  four 
days  inclusive  after  delivery  or  notice  of  declaration,  unless 
the  declaration  be  delivered  or  filed  after  term,  or  so  late  in 
the  term  that  the  defendant  is  not  bound  to  plead  to  it  in  that 
term ;  in  both  which  cases  the  defendant  may  plead  within 
the  first  four  days,  inclusive  of  the  next  term.  This  is  bjr 
different  rules  of  court.  (A) 

NOTE  (25).    See  p.  188. 

A  plea  in  bar  is  called  by  Bracton,  after  the  civilians,  exceptio 
peremptoria.  In  the  French  of  Britton  it  is  described  as  an 
exception,  pur  barrer  le  pleintyfe,  de  sa  demaunde.  (i)  It  is  ob- 
servable that  the  terms  oarrer  and  oarre  were  in  common  use 
in  the  law-language  of  France  in  the  year  1270,  (&)  which  is 
about  the  same  period  when  they  first  make  their  appearance 
in  the  English  pleading. 

NOTE  (26).     See  p.  188. 

Traverse  is  the  most  proper  and  ancient  term.  (1}  In  the 
modern  language  of  pleading,  however,  deny  is  often  substi- 
tuted for  it ;  and  pleas  in  denial  is  a  term  often  used  instead 
of  pleas  fry  way  of  traverse.  The  reason  is  that  traverse  is  a 
word  that  also  occurs  in  a  more  limited  sense,  being  often 
applied  to  a  particular  form  of  denial,  of  which  there  will  be 
occasion,  in  the  course  of  this  work,  to  speak ;  and  the  word 
deny,  as  preventing  confusion,  is  therefore  usually  adopted  as 
the  more  convenient  expression  for  the  general  idea.  In  this 
treatise,  however,  denial  in  general  is  called  by  its  proper  ap- 
pellation of  traverse;  and  the  particular  kind  of  denial  above 
mentioned  is  denominated  a  special  or  formal  traverse.  Any 
confusion  is  thus  sufficiently  avoided,  and  the  regular  and 
ancient  terms  of  art  are  preserved. 

(A)  1  Tidd,  577;  2  Arch.  Pract.  1,  & 
(0  Britton,  92. 

(fc)  Ducange,  Gloss.,  verbo  Barrse. 

(0  See  1  Chitty,  636,  and  the  authorities  there  cited;  Bae.  Ab.,  Pleafl,  etc.  (H.);  Ftncfa 
Law,  306,  397. 


NOTES  (27)-(29).  .  APPENDIX.  525 

NOTE  (27).     See  p.  195. 

As  a  party  who  makes  a  statement  of  fact  is  said  to  plead, 
by  way  of  distinction  from  demurring,  so  such  statement  or 
allegation  is  in  strictness  called  a  plea;  and  when  opposed  to 
the  declaration  is  denominated  a  plea  to  the  jurisdiction  in 
suspension,  in  abatement  or  in  far;  at  subsequent  stages,  a  plea 
by  way  of  reply,  by  way  of  rejoinder,  etc.,  according  to  the 
stage  at  which  it  occurs.  But  as  the  name  of  plea  is,  in  prac- 
tice, generally  understood  to  refer  to  that  particular  answer 
m  fact  which  the  defendant  opposes  to  the  declaration,  and 
to  that  only,  the  word  pleading  will  (to  avoid  ambiguity)  be 
substituted,  in  this  work,  to  express  a  statement  of  fact  in 
general,  as  opposed  to  a  demurrer. 

NOTE  (28).    See  p.  195. 

The  civilians  and  canonists  described  their  pleadings  in  a 
similar  manner,  viz.,  as  intentio,  exceptio,  replicatio,  etc.  Dig., 
lib.  M,  tit.  1,  sec.  2;  Corv.  Jus.  Canon.,  lib.  3,  tit.  32. 

NOTE  (29).     See  p.  198. 

Nothing  has  been  here  attempted  but  ^.practical  explanation 
of  the  manner  of  coming  to  issue.  If  considered  in  a  view  to 
its  abstract  principle,  it  will  be  found  to  consist  in  an  applica- 
tion of  that  analytical  process  by  which  the  mind,  even  in  the 
private  consideration  of  any  controversy,  arrives  at  the  devel- 
opment of  the  question  in  dispute.  For  this  purpose  it  is  al- 
ways necessary  to  distribute  the  mass  of  matter  into  detached 
contending  propositions,  and  to  set  them  consecutively  in 
array  against  each  other,  till,  by  this  logical  conflict,  the  state 
of  the  question  is  ultimately  ascertained.  This  ranks,  in  the 
present  day,  among  those  ordinary  logical  operations  which 
it  is  easier  to  practice  than  to  define,  and  which  it  would  be 
superfluous  to  attempt  to  reduce  to  scientific  rule.  It  was, 
however,  as  applied  to  the  purpose  of  forensic  disputation,  a 
very  favorite  topic  with  the  ancient  writers  on  dialectics  and 
rhetoric,  and  there  was  no  subject  connected  with  these  sci- 
ences on  which  they  bestowed  more  elaborate  attention. 
Status  excogitandi,  says  Sigonius,  atque  eo  probationes  omnes 

34 


526  APPENDIX.  NOTE  (29). 

conferendi,  artificium,  in  libris  oratoriis,  multis  verbis  est  de- 
monstratum ;  neque  enim  in  aliis  praeceptis,  antiqui  rhetores, 
tarn  Grasci,  quam  Latini,  plus  studii  aut  opera3  consumpse- 
runt.  (m)  The  question  in  controversy  is  described,  among 
these  writers,  by  the  different  terms  xptvopevov,  summa  quass- 
tio,  res  de  qua  agitur,  qua3stio  ex  qua  causa  nascitur,  judicatio, 
and  others  of  similar  import,  all  expressive  of  the  same  gen- 
eral idea,  though  slightly  distinguished  from  each  other  in 
their  particular  application,  (n)  "When  this  question  was  de- 
veloped, there  was  said  to  be  a  status  or  constitutio,  causce.  Of 
these  status  there  were  many  classes,  according  to  the  differ- 
ent kinds  of  questions  which  might  arise,  involving  not  only 
the  distinction  recognized  in  our  pleading  between  questions 
of  fact  and  of  law  (status  con jectur  ales  et  legales\  but  additional 
distributions  in  status  finitivcB,  translativce,  and  many  others, 
corresponding  with  the  various  logical  divisions  under  which 
the  different  subjects  of  civil  dispute  may  be  considered.  As 
a  specimen  of  this  obsolete  but  curious  learning,  and,  at  the 
same  time,  as  the  best  illustration  of  what  is  the  natural  prog- 
ress of  the  mind  in  effecting  that  development  of  which  we 
have  spoken,  the  following  passage  of  Quinctilian  deserves 
attention.  In  that  part  of  his  work  which  relates  to  the  dis- 
positio  or  the  art  of  oratorical  division  and  arrangement,  after 
noticing  the  importance  of  a  prudent  selection  of  the  point  of 
argument  and  a  discreet  statement  of  the  general  question,  and 
observing  that  the  choice  should  be  determined  by  the  nature 
of  the  case  which  the  orator  was  to  support,  he  proceeds: 
"  I  will  explain  my  own  method  in  this  particular,  which  I 
attained  partly  by  precept  and  partly  by  the  natural  deduc- 
tions of  reason,  and  of  which  I  never  attempted  to  make  a 
mystery.  In  all  forensic  controversies  I  took  care,  in  the  first 
place,  to  inform  myself  of  all  the  different  matters  involved 
in  the  cause.  I  say  in  forensic  controversies ;  for,  as  to  the 
disputes  of  the  schools,  the  operation  is  unnecessary,  as  they 
consist  merely  in  the  discussion  of  a  few  questions  distinctly 
discriminated  at  the  outset  as  the  subjects  for  declamation, 
and  denominated  #e//ara  by  the  Greeks,  by  Cicero  proposita. 

(m)  Oar.  Sigonius  de  Judiciis.    Bee,  also,  QuinctiL,  lib.  3,  Ch.  6;  Cie.  In  Topic.,  ch.  86; 
Ger.  Vossius  Lustit.  Orat. 

OO  QuiiictiL.  et  Cie.,  ubl  supra. 


KOTE  (29).  APPENDIX.  527 

After  thus  placing,  then,  the  whole  matter  of  the  controversy 
distinctly  in  ray  view,  it  was  my  habit  to  analyze  it,  as  well  on 
the  part  of  my  adversary  as  on  my  own.  And  first  I  applied 
myself  to  that  which,  though  easily  described,  requires  a  pe- 
culiarly attentive  performance, —  I  mean  I  ascertained  what 
case  it  was  the  object  of  either  party  to  make,  and  by  what 
allegations  such  cases  might  be  respectively  supported.  "With 
this  view,  I  began  by  considering  what  might  be  alleged  by 
the  plaintiff.  This  statement  would  necessarily  either  be  ad- 
mitted or  denied  on  the  part  of  the  defendant.  If  admitted, 
no  question  could  at  that  stage  arise.  I  therefore  proceeded 
to  consider  what  would  be  the  defendant's  answer;  and  to 
this  I  applied  the  same  dilemma  of  admission  or  denial  by  the 
plaintiff.  Accordingly,  sometimes  the  matter  of  the  answer 
would  be  admitted ;  but  at  all  events  there  would,  at  some 
period  of  the  process,  arise  a  contradiction  between  the  par- 
ties ;  and  it  is  then  that  the  question  in  the  cause  is  first  as- 
certained. For  example,  You  killed  such  a  man.  Admitted. 
"We  proceed.  The  defendant  must  now  assign  some  reason 
for  this  act.  It  was  lawful  to  kill  him,  as  surprised  in  adultery 
with  my  wife.  There  is  no  doubt  of  the  law;  we  must  there- 
fore seek,  in  some  other  point,  the  subject  of  contention. 
The  parties  surprised  were  not  committing  adultery.  They 
were.  This,  then,  is  the  question,  and  is  a  question  of  fact" 
{conjectura  —  i.  e.,  status  conjecturalis).  "  In  some  cases,  how- 
ever, there  might  be  a  farther  admission.  They  were  in  adultery ', 
but  you  had  no  right  to  kill  him,  for  you  were  an  exile,  and  in- 
famous person.  And  here  arises  a  question  of  law.  On  the 
other  hand,  if,  to  the  first  allegation,  you  killed,  it  had  been 
answered,  /  did  not  kill,  the  question  had  been  ascertained  at 
the  outset.  By  this  kind  of  process  is  the  matter  in  dispute, 
or  main  question  in  the  cause,  to  be  investigated."  (<?) 

This  oratorical  analysis  of  Quinctilian  exhibits  exactly  the 
principle  of  the  English  pleading;  and  when  it  is  considered 
that  the  logic  and  rhetoric  of  antiquity  were  the  favorite 
studies  of  the  age  in  which  that  science  was  principally  culti- 
vated, and  that  the  judges  and  pleaders  were,  doubtless,  men 
of  general  learning,  according  to  the  fashion  of  their  times, 
it  is,  perhaps,  not  improbable  that  the  method  of  developing 

(o)  QuinctiL,  lib.  7,  ch.  1. 


528  APPENDIX.  NOTES  (30),  (31). 

the  point  in  controversy  was  improved  from  these  ancient 
sources.  On  the  other  hand,  however,  it  seems  not  to  have  been 
wholly  derived  from  them;  for  the  same  method  will  appear, 
in  one  of  the  following  notes,  (p)  to  have  been  substantially 
in  the  possession  of  the  barbarous  Franks  and  Lombards,  with 
whom  it  was,  presumably,  a  native  invention.  "Whatever 
merit,"  says  Gibbon,  "  may  be  discovered  in  the  laws  of  the 
Lombards,  they  are  the  genuine  fruit  of  the  reason  of  thd 
barbarians,  who  never  admitted  the  bishops  of  Italy  to  a  seat 
in  their  legislative  councils."  (g) 

'  NOTE  (30).     See  p.  215. 

Trial  has  been  long  used  to  express  the  investigation  and 
decision  of  fact  only ;  but  would  appear  to  have  originally 
signified  decision  in  general.  For  by  Bracton,  in  the  reign  of 
Henry  III.,  the  word  triare  seems  to  be  taken  in  that  larger 
sense,  Nunc  dicendum  ubi  triandcs  sunt  actiones  civiles,  etc.  (r) 
And  Britton  applies  the  French  word  trier  in  the  same  way. 
Thus,  in  speaking  of  the  assise  of  darreign  presentment,  he 
says,  se  il  aveigne  que  ils  se  .consentent  en  un  clerke,  sans 
faire  trier  le  droit,  etc.  (s)  As  for  the  origin  of  the  word 
trial,  it  appears  by  these  quotations  that  it  is,  like  almost 
every  term  of  English  law  of  French  extraction,  being  derived 
from  trier,  (f)  Indeed,  on  this  subject,  we  shall  find  the  ob- 
servation of  the  learned  Craig  perpetually  verified :  Omnia 
vocabula,  quge  vocabula  artis  dicuntur,  quibusque  hodie  in  fora 
Angli  utuntur,  Gallica  sunt;  nihilque  cum  Saxonica  lingua, 
habent  aflfine.  (u) 

NOTE  (31).    See  p.  216. 

Originally  an  action  was  triable  only  in  the  court  where  it 
was  brought.  But  it  was  provided  by  Magna  Charta,  in  ease 
of  the  subject,  that  assises  of  novel  disseisin  and  mortancestor 
(which  were  the  most  common  remedies  of  that  day)  should 

(p)  Vide  pott,  note  (40). 
(9)  Decline  and  Fall,  etc.,  vol.  8,  p.  1CT. 
(r)  Bract.  105  a. 
(«)  Britton,  92. 

(0  It  is  said  by  one  writer,  however,  to  be  derived  from  the  Saxon.  See  Ducange, 
Gloss.,  verbo  Triare. 

(u)  Crag.  Jus.  Feud.,  lib.  1,  d.  7. 


NOTES  (32),  (33).  APPENDIX.  529 

thenceforward,  instead  of  being  tried  at  "Westminster,  in  the 
superior  court,  be  taken  in  their  proper  counties ;  and  for  this 
purpose  justices  were  to  be  sent  into  every  county  once  a  year 
to  take  these  assises  there,  (x)  These  local  trials  being  found 
convenient,  were  soon  applied,  not  only  to  assises,  but  to  other 
actions ;  for  by  the  statute  of  Nisi  Prius  (13  Ed.  I.,  ch.  30),  it 
is  provided  as  the  general  course  of  proceeding  that  writs  of 
venire  for  summoning  juries  to  the  superior  courts  shall  be 
in  the  following  form:  Prsecipimus  tibi  quod  venire  facias 
coram  justitiariis  nostris  apud  Westm.  in  octabis  Scti  Mich- 
ael is,  nisi  tails  et  talis,  tali  die  et  loco  ad  paries  illas  vene?'int, 
duodecim,  etc.  Thus  the  trial  was  to  be  had  at  Westminster 
only  in  the  event  of  its  not  previously  taking  place  in  the 
county  before  the  justices  appointed  to  take  the  assises.  This 
clause  of  nisi  or  nisiprius  is  not  now  retained  in  the  venire; 
but  it  occurs  in  a  subsequent  part  of  the  proceedings.  (See 
the  Entry  of  Judgment,  §  97.)  And  it  is  this  provision  of 
the  statute  of  Nisi  Prius,  enforced  by  a  subsequent  statute  of 
14  Ed.  III.,'ch.  16,  which  authorizes  at  the  present  day  a  trial 
before  the  justices  of  assise  in  lieu  of  the  superior  court,  and 
gives  it  the  name  of  a  trial  at  nis  prius.  (y) 

NOTE  (32).     See  p.  230. 

The  ancient  law,  indeed,  provided  one  means  of  appeal 
from  the  verdict  of  a  jury  in  certain  cases,  viz. :  by  writ  of 
attaint;  upon  which  there  was  a  kind  of  new  trial  by  twenty- 
four  new  jurors,  (z)  But  this  proceeding  is  now  obsolete, 
and,  indeed,  is  applicable  only  to  a  case  where  the  jury  know- 
ingly and  wilfully  gave  a  false  verdict. 

NOTE  (33).     See  p.  230. 

The  statutes  of  jeofails  are  so  called  from  J'ay  faille, — 
an  expression  used  by  the  pleader  of  former  days  when  he 
perceived  a  slip  in  his  proceeding,  (a)  The  statutes  of  jeofails 
and  amendment  are:  14  Ed.  III.,  ch.  6;  9  Hen.  V.,  ch.  4;  4 

(x)  1  Beeves,  346. 

(y)  For  farther  information  on  this  subject,  see  3  Bl.  Com.  58: 1  Reeves,  245, 332;  2  Reeves, 
170. 

(z)  See  3  Bl.  Com.  402;  1  Reeves,  370;  2  Reeves,  117,  434;  4  Reeves,  263. 
(a)  3  Bl.  Cora.  407;  Termes  de  ley. 


530  APPENDIX.  NOTE  (33). 

Hen.  VI.,  ch.  3;  8  Hen.  VI, ch.  12,  15;  32  Hen.  VIIL,  ch.  30; 
18  Eliz.,  ch.  14;  21  Jac.  L,  ch.  13;  16  &  17  Car.  II,  ch.  8;  4 
&  5  Ann,  ch.  16;  9  Ann,  ch.  20;  5  Geo.  L,  ch.  13.  (J) 

[EDITOR'S  NOTE. —  This  subject  may  be  introduced  by  quoting  a  remark 
of  Justice  Doe  in  regard  to  statutory  provisions  affecting  another  subject : 
"  With  so  much  legislation  on  the  subject  as  there  has  been  in  that  country 
(England),  and  so  much  litigation  upon  acts  of  parliament,  it  was  not  strange 
that  the  bar  and  bench  should  finally  lose  sight  of  the  common-law  origin 
of  the  principle  so  many  times  enacted  in  different  forms  and  carried 
out  in  different  methods.  ...  It  seems  to  have  been  a  result  of  the 
anxiety  of  parliament,  that,  instead  of  merely  providing  such  new  reme- 
dies and  modes  of  judicial  procedure  as  they  deemed  necessary  for  the  en- 
forcement of  the  common  law,  they  repeatedly  re-enacted  the  common 
law,  until  it  came  to  be  supposed  that  .  .  .  the  public  were  indebted 
...  to  the  modern  vigilance  of  parliament  instead  of  the  system  of 
legal  reason  which  had  been  the  birthright  of  Englishmen  for  many  ages. 
A  mistake  of  this  kind  is  an  evil  of  some  magnitude.  It  unjustly  weakens 
the  confidence  of  the  community  in  the  wisdom  and  justice  of  the  ancient 
system  and  impairs  its  vigor."  McDuffee  v.  R.  &  R.  Ry.  (1873),  52  N.  H.  430. 

To  the  same  effect,  but  directly  upon  the  subject  of  amendments,  is  the 
reports  of  the  judges  of  Pennsylvania,  an  extract  from  which  we  will  here 
recite. 

In  1807,  by  an  act  of  the  legislature  of  Pennsylvania,  the  judges  of  the 
supreme  court  were  required  to  examine  the  English  statutes  and  report 
which  were  in  force  in  that  state,  and  which  ought  to  be  incorporated  into 
the  laws  of  the  commonwealth.  In  the  section  of  their  report  dealing 
with  the  statutes  of  amendments  the  judges  said : 

"The  numerous  statutes  of  amendments  and  jeofails,  which  from  time 
to  time  have  been  enacted,  as  well  as  other  circumstances,  seem  to  counte- 
nance the  inference  that  few  amendments  were  authorized  by  the  common 
law.  It  will  be  found,  however,  that  many  of  the  provisions  of  these  statutes 
are  merely  declaratory  of  the  existing  law, —  a  circumstance  by  no  means 
universal  in  those  early  times,  when  it  seems  that  even  statutes  of  the  great- 
est consequence  were  little  known  to  the  generality  of  the  people^ 

"The  amendment  of  form  in  such  a  way  as  to  attain  the  real  merits  and 
justice  of  the  case  is  so  congenial  to  the  principles  upon  which  all  laws 
ought  to  be  administered  that  it  would  be  a  foul  blot  upon  the  common  law, 
and  a  subject  of  regret  to  the  admirers  of  that  system,  if  it  really  counte- 
nanced the  absurd  strictness  which  at  one  period  prevailed  on  this  subject 

"  That  fastidious  circumspection  observable  in  the  courts  formerly,  in  re- 
lation to  amendments,  is  attributable  to  the  tyrannical  persecution  of  the 
judges,  carried  on  by  Edward  L,  about  the  eighteenth  year  of  his  reign,  for 
the  shameful  purpose  of  replenishing  his  empty  coffers.  See  ante,  p.  11. 

"As  the  statutes  of  amendments  and  jeofails  do  not  extend  to  criminal 
cases,  a  fair  opportunity  has  been  afforded  of  ascertaining,  by  decisions  of 
the  enlightened  and  independent  tribunals  of  modern  times,  the  extent  to 

(6)  3  BL  Com.  407;  2  Tidd,  650,  815. 


(33).  APPENDIX.  531 

which  such  amendments  might  be  carried  by  the  common  law,  which,  in 
respect  to  amendments,  makes  no  distinction  between  criminal  and  civil 
suits.  Upon  a  review  of  these  decisions  it  will  be  readily  perceived  that, 
according  to  the  soundest  and  best  established  principles  of  the  common 
law,  amendments  may  be  made  to  an  extent  that  would  have  astonished 
and  alarmed  greatly,  as  well  the  bench  as  the  bar,  in  ancient  times." 

See  Roberts'  Digest  of  British  Statutes  in  force  in  Pennsylvania  (2d  ed.), 
pp.  27,  28. 

The  first  great  English  statute  to  notice  is  Magna  Charta,  because  it  re- 
vives the  Saxon  laws  as  they  stood  at  the  time  of  Edward  the  Confessor, 
and  the  judicial  remedies  according  to  the  course  of  the  common  law. 
See  Blackstone's  Law  Tracts,  p.  xiii,  Intr. 

The  first  statute  of  Amendment,  so  named,  was  14  Ed.  IIL,  ch.  6  (A.  D.  1340). 
It  provided  for  the  amendment  of  the  record  defective  by  the  misprision  of 
a  clerk. 

The  next  is  9  Hen.  V.,  ch.  4  (A.  D.  1421),  providing  that  the  judges  may 
amend  records  or  process  after  judgment 

By  statute  4  Hen.  YL,  ch.  3  (A.  D.  1425),   The  above  was  made  perpetual. 

The  next,  and  a  very  important  one,  is  8  Hen.  VI.,  ch.  12  (A.  D.  1429),  pro- 
viding that  no  judgment  shall  be  reversed  on  error  for  errors  which  shall 
appear  from  interlineation,  erasures,  etc.,  but  that  the  judges  shall  inquire 
into  the  facts  and  amend  the  record  accordingly.  This  statute  has  been  held 
to  cure  a  variance  between  original  writ  and  final  process.  Thorpe  v.  Hook, 
1  Dowl.  P.  C.  501.  See  Bicknell  v.  Wetherill,  41  Eng.  C.  L.  R  837. 

The  statute  of  8  Hen.  VI.,  ch.  15,  in  the  same  year  as  the  last  above 
noticed,  provided  for  amendment  in  returns  of  records  and  process  of 
sheriffs,  coroners  and  bailiffs,  misprisions  of  clerks,  etc. 

The  statute  of  32  Hen.  VIIL,  ch.  30  (A.  D.  1540),  recites  the  great  slan- 
der to  the  common  law  on  account  of  the  strictness  which  had  obtained 
in  regard  to  amendment,  and  enacted  the  substance  of  all  of  the  other  stat- 
utes, and  enlarged  the  power  to  amend  for  mistakes  in  form  or  substance, 
insufficient  pleading,  etc. 

This  was  followed  by  18  Eliz.,  ch.  14  (A.  D.  1576),  in  which  it  was  en- 
acted that  no  judgment  should  be  stayed  or  reversed  by  reason  of  any 
default  in  form  in  any  writ,  count,  declaration,  etc.,  or  for  want  of  any 
writ,  or  by  reason  of  any  imperfect  return  by  sheriff  or  other  officer.  But 
this  did  not  extend  to  action  or  information  upon  any  popular  or  penal 
statute. 

By  27  Eliz.,  ch.  5  (A.  D.  1585),  it  was  enacted  that  after  demurrer  judgment 
should  be  given  on  the  merits  without  regarding  defect  or  want  of  form  in 
writ,  declaration  or  other  pleading,  except  those  only  to  which  the  party  shall 
specially  demur ;  and  further,  that  after  demurrer  the  court  should  amend  all 
imperfections  before  mentioned  other  than  those  to  which  the  party  shall 
specially  demur. 

This  is  the  last  of  the  English  statutes  in  force  in  those  states  which  date 
their  common  law  from  the  fourth  year  of  King  Jas.  L 

Stat.  21  Jac.  L,  ch.  13  (A.  D.  1623),  after  reciting  32  Hen.  VIIL  and  18  Eliz., 
enacted  further,  that  after  verdict  judgment  should  not  be  stayed  by  reason 
of  variance  in  form  only  between  the  original  writ  and  the  declaration,  or 


532  APPENDIX.  NOTE  (33). 

by  reason  of  misnomer  of  any  of  the  jury,  or  by  reason  of  there  being  no 
return  upon  the  writs,  if  a  panel  of  the  names  of  jurors  was  annexed  to  the 
writ,  or  by  reason  of  the  name  of  the  officer  having  the  return  not  being 
Bet  to  the  return,  if  it  be  proved  that  the  writ  was  returned  by  such  officer, 
etc. 

By  statute  4  Anne,  eh.  16  (A.  D.  1705),  it  was  enacted  that  after  demurrer 
judgment  should  be  given  without  regard  to  omission  or  defect  in  any 
pleading  except  such  as  the  party  should  demur  to  specially ;  (2)  that  all 
the  statutes  of  jeofails  should  be  extended  to  judgments  entered  upon  con- 
cession, nihil  dicit  or  non  sum  informatus;  (3)  attorney  for  plaintiff  shall  file 
is  warrant,  and  likewise  attorney  for  defendant ;  (4)  that  defendant  in  any 
action,  and  plaintiff  in  replevin,  shall  be  allowed  to  plead  as  many  matters  as 
he  may  deem  necessary ;  (5)  that  if  such  matter  shall  upon  demurrer  be 
judged  insufficient,  costs  shall  be  given  at  discretion  of  the-court ;  (8)  provid- 
ing for  view  of  lands  in  question ;  (9)  that  no  dilatory  plea  should  be  received 
without  proof  of  the  truth  thereof ;  (12)  that  in  an  action  of  debt  upon  bill  or 
judgment,  payment  of  money  upon  such  bill  or  judgment  might  be  pleaded 
in  bar  of  the  action;  (13)  that  if,  pending  an  action  upon  bond  with  pen- 
alty, the  defendant  should  bring  into  court  the  principal  money  with  interest 
and  costs,  such  defendant  shall  be  discharged  from  the  same ;  (17)  actions 
for  seamen's  wages  must  be  commenced  within  six  years  from  time  cause 
of  action  accrued ;  (18)  but  if  the  person  entitled  to  sue  for  seaman's  wages 
is  at  the  time  the  cause  of  action  accrued  under  twenty-one,  feme  covert, 
non  compos  mentis,  imprisoned,  or  beyond  seas,  then  the  period  of  six 
years  shall  be  reckoned  from  the  time  of  their  coming  of  full  age,  discovert, 
of  sane  memory,  at  large,  or  returned  from  beyond  seas ;  (19)  if  any  per- 
son shall  be  beyond  seas  at  the  time  cause  of  action  accrues  against  him, 
then  the  action  may  be  brought  within  six  years  after  his  return.  This 
great  statute  is  the  model  for  many  of  the  American  statutes  upon  the  sub- 
ject See  Starr  &  Curt  111.  Stat,  p.  273,  «|T  6. 

By  Illinois  Practice  Act  (Starr  &  Curtiss,  Ann.  Stat,  p.  1787,  IT  24),  at  any 
time  before  judgment  in  a  civil  suit  amendments  may  be  allowed  introduc- 
ing any  party  necessary  to  be  joined  as  plaintiff  or  defendant,  changing 
form  of  action,  and  in  any  matter,  either  of  form  or  substance,  in  any 
process,  pleading  or  proceeding,  which  may  enable  the  plaintiff  to  sustain 
the  action  for  the  claim,  or  the  defendant  to  make  a  legal  defensa  And  it 
is  enacted  that  at  any  time  before  judgment  the  court  in  which  an  action 
is  pending  shall  have  power  to  permit  amendments  in  any  process  or  plead- 
ing, either  in  form  or  substance,  for  the  furtherance  of  justice,  on  suoh 
terms  as  shall  be  just  Starr  &  Curtiss,  p.  265,  If  !•  And  after  judgment 
any  defects  or  imperfections  in  matters  of  form  may  be  rectified  and 
amended  by  the  court  in  affirmance  of  the  judgment,  so  that  such  judg- 
ment shall  not  be  reversed  or  annulled;  and  any  variance  in  the  record 
from  any  process,  pleading  or  proceeding  had  in  such  cause  shall  be  re- 
formed or  amended  according  to  such  original  process,  pleading  or  proceed- 
ing. Starr  &  Curtiss,  p.  269,  If  2. 

A  principal  object  of  all  statutes  of  amendments  and  of  joining  of  several 
counts,  varying  the  form  of  statement  is  to  obviate  the  danger  of  a  vari- 
ance on  the  trial.  In  this  respect,  whatever  may  have  been  the  former 


NOTE  (33).  APPENDIX.  533 

strictness  of  the  rule  in  the  code  states,  the  same  liberality  of  statement  is 
now  allowed,  and  for  the  same  reason,  viz.,  the  practical  one  heretofore 
pointed  out.  Ante,  p.  356  et  seq.  See  Mahan  v.  Smitherman,  71  Ala.  563, 
citing  1  Chitty,  PL  198,  and  Powell  v.  Gray,  1  Ala.  77. 

In  a  late  Rhode  Island  case  the  court  said  the  language  of  the  judiciary 
act  is  merely  declarative  of  a  rule  which  has  been  practiced  here  and  else- 
where, that  the  court  in  its  discretion  may  permit  amendments  even  in 
matters  of  substance  which  do  not  go  to  the  length  of  changing  the  form 
of  action  or  introducing  a  new  or  different  cause  of  action.  Wilson  v.  N.  Y. 
&  N.  H.  Ry.  Co.  (1894),  18  R  L  491. 

Under  the  West  Virginia  code  the  court  held  that  amendments  should  be 
allowed,  limited  only  by  the  rule  that  the  party  could  not  introduce  an  en- 
tirely new  cause  of  action  not  declared  upon  or  intended  to  be  declared 
upon,  even  though  it  might  be  such  a  one  as  might  have  been  joined  in  the 
original  declaration  or  complaint.  Snyder  v.  Harper,  24  W.  Va.  206. 

While  the  authorities  seem  harmonious  on  the  question  that  the  statute 
of  limitations  cannot  be  evaded  by  amendment  (North  C.  R  M.  v.  Mouka, 
107  111.  340;  Guilford  v.  Adams,  19  Pick.  376;  Ross  v.  Bates,  2  Root,  198; 
Cooper  v.  Waldron,  50  Me.  80;  Sumner  v.  Brown,  84  Vt.  195.  See  Stephens 
v.  Mudget,  10  N.  H.  338,  34  Am.  Dec.  155,  n.),  in  Illinois  it  has  been  held 
that  the  parties  may  be  substituted  in  part  and  entirely  (Dickison  v.  C., 

B.  &  Q.  Ry.,  81  111.  215;  United  States  Ins.  Co.  v.  Ludwig,  108  id.  514;  Smith 
v.  C.,  M.  &  St.  P.  Ry.,  86  la.  202);  unless  by  the  change  in  parties  the  cause 
of  action  is  changed,  as  is  necessarily  the  case  in  actions  ex  contractu 
(Peck  v.  Sill,  3  Conn.  186;  Norris  v.  Pollard,  75  Ga.  358.    See  137  111.  348; 
180 11L  117),  unless  the  change  be  as  to  representative  parties;  and  it  has  even 
been  held  that  after  the  trial  had  progressed  to  argument  in  an  action 
brought  in  case,  a  new  count  in  trespass  might  be  added  by  amendment. 

C.  &  P.  Ry.  v.  Stein,  75 11L  41.    This  case  seems  to  apply  the  rule  as  liberally 
as  in  any  jurisdiction.    For  exhaustive  presentation,  see  note  sub.  Flanders 
v.  Cobb,  88  Me.  488,  51  Am.  St.  R  410-14. 

Amendment  is  not  substitution,  nor  the  introduction  of  another  subject 
while  preserving  the  one  first  declared  upon.  Flanders  v.  Cobb,  supra.  Yet  it 
is  held  by  some  courts  that  a  new  cause  may  be  introduced  by  amendment 
subject  to  the  statute  of  limitations.  U.  P.  Ry.  Co.  v.  Wyler,  158  U.  S.  285; 
C.,  B.  &  Q.  Ry.  v.  Jones,  149  111.  361.  In  New  York  before  issue  joined  the 
cause  of  action  may  be  changed.  Deyo  v.  Mass,  144  N.  Y.  216. 

These  statutes  of  their  own  force  cure  defect  in  form  in  the  pleading  or 
formal  variances  of  proof,  but  do  not  aid  a  defective  record.  Holmes  v. 
Preston,  70  Miss.  152;  Harris  v.  Shebeck,  151 11L  288;  Merkle  v.  Bennington, 
68  Mich.  133.  The  trial  court  may  of  its  own  motion  direct  amendments. 
Martin  v.  Good,  111  N.  C.  288.  Or  amendments  may  be  ordered  by  the  ap- 
pellate tribunal.  Mitchell  v.  Railway  Co.,  82  Mo.  106;  Rigg  v.  Parsons,  29 
W.  Va.  522;  Love  v.  Tinsley,  32  id.  25. 

The  result  of  the  power  of  amendment  is  to  entirely  remove  the  embar- 
rassment formerly  attendant  upon  the  distinction  between  forms  of  action. 
When  we  consider  that  under  the  code  the  case  must  begin  and  proceed 
upon  a  definite  theory,  and  the  theory  is  to  be  determined  by  the  nature  of 
the  cause  of  action  stated,  tested  by  the  substantive  rules  of  the  common 
law,  and  that  the  proof  must  correspond  to  the  allegations,  e,  g.',  a  count  for 


534  APPENDIX.  NOTE  (34). 

unjustly  and  intentionally  injuring  is  not  supported  by  proof  of  a  negligent 
injury  (Harold  v.  Jones,  98  Ala.  348),  or  proof  of  an  implied  contract  will 
not  sustain  an  allegation  of  an  express  one  (Aultman  Co.  v.  Goldsmith,  84 
Ind.  547),  we  are  enabled  to  judge  whether  or  not  the  ancient  system,  as 
developed  by  ten  centuries  of  Saxon  thought,  is  founded  in  reason  or  logic, 
or  owes  its  continued  existence  to  the  prejudice  of  those  who  will  not 
change.  See  Andrews'  American  Law,  p.  1061. 

NOTE  (34).     See  p.  233. 

"Without  entering  into  the  well-contested  field  of  contro- 
versy on  the  question  whether  the  method  of  trial  Ijy  jury 
was  of  Anglo-Saxon  or  of  Norman  origin,  it  may  be  sufficient 
to  sum  up  the  result  of  the  dispute  thus:  There  is,  on  the 
one  hand,  some  evidence  of  the  occasional  existence  of  an 
inquisitio  patrioe,  or  inquisition  by  &jarataot  twelve,  in  Eng- 
land, before  the  Conquest;  though  with  what  frequency  it 
may  have  then  occurred  it  is  ver}7  difficult  to  determine.  On 
the  other  hand,  it  clearly  existed  as  an  ordinary  mode  of  de- 
cision among  the  Scandinavian  ancestry  of  the  Norman  in- 
vaders, (c)  The  same  species  of  inquisition  also  existed  among 
the  Normans  themselves,  (d)  and  was  in  force  in  Normandy 
at  least  as  late  as  the  year  1C54;  for  in  the  Commentaires  de 
Terrien,  published  in  that  year,  it  is  said:  Enqueste  est  recog- 
noissant  de  verite  de  la  chose  de  quoy  est,  par  le  serment  de 
douze  chevaliers,  ou  de  douze  antres  preudes  hommes  (probos 
homines)  creables,  et  qui  ne  soyent  pas  soupconneux.  (e)  And 
the  same  author  observes :  Par  la  coustume  du  pays,  un  faict  ne 
chet  point  en  enqueste,  en  tel  cas  (i.  e.,  matiere  heredital)  s'il 
n'  est  ou  peut  estre  notoire  au  voisine.  (/) 

Whatever  may  have  been  the  ultimate  origin  of  this  method 
of  decision  it  is  at  all  events  clear  that  it  was  occasionally  in 
use  in  this  country  at  least  as  early  as  the  reign  of  Hen.  II.; 
for  it  is  expressly  mentioned  by  Glanville  under  the  name  of 
Jurata  patriaB  sive  vrsineti.  (g)  But  it  is  equally  clear  that  it 

(c)  See,  among  other  authorities,  Hickes,  Thes.  Diss.  Epist.  32,  83,  etc.    This  author,  at 
the  same  time,  combats  the  opinion  that  the  method  was  known  among  the  Anglo-Saxons, 
and  attempts  to  show  that  the  passages  cited  in  support  of  that  opinion  have  been  misun- 
derstood.   In  this,  however,  he  opposes  himself  to  Coke,  Spelman  and  Selden;  and  the 
authority  of  these  great  names  is  fortified  by  the  coincident  opinion  of  Mr.  J.  Blackstone. 

(d)  Vide  the  Grand  Coustumier,  Ixxxiv,  etc. 

(e)  Comment,  de  Terrien,  liv.  ix,  ch.  xxxiii. 
(/)  Ibid.,  liv.  ix,  ch.  xxvii. 

(g)  Glan.,  lib.  9,  ch.  11;  lib.  7,  ch.  16;  lib.  5,  ch.  4. 


NOTE  (35).  APPENDIX.  535 

was  not  then  in  ordinary  use.  Prior  to  a  certain  law  of 
Hen.  II.,  not  now  extant,  it  seems  that  this  mode  of  decision 
had  belonged  only  to  a  few  specific  cases,  the  enumeration  of 
all  or  most  of  which  may  be  found  in  Glanville.  But  in  the 
reign  of  that  monarch  the  law  above  mentioned  passed,  au- 
thorizing the  application  of  the  jurata  patrise,  or  inquisition 
of  twelve  men,  to  certain  questions  of  seisin,  which  appear 
before  that  time  to  have  been  decided  by  wager  of  lattel  only. 
This  ordinance,  like  other  laws  of  that  day,  (A)  was  called 
assisa  or  an  assise;  and  when  an  inquisition  by  a  jurata  patrias 
took  place  by  virtue  of  its  provisions,  such  inquisition  was 
called  a  recognition  of  assise.  The  recognition  of  assise  became 
so  popular  that  suitors  were  led  to  adopt  the  same  method 
ly  mutual  consent  or  by  advice  of  the  court,  (i)  even  for  the 
decision  of  questions  for  which  the  ordinance  of  Hen.  II.  did 
not  provide,  and  which  they  would  otherwise  have  been 
obliged  to  settle  by  wager  of  battel.  The  proceeding,  when 
thus  instituted  by  consent  of  the  parties  or  advice  of  the 
court,  was  called  jurata  ex  consensu,  to  distinguish  it  from 
the  regular  recognition  of  assise  appointed  by  law.  Thisjurata 
eat  consensu,  which  is  the  modern  trial  l>y  jury,  continually  in- 
creased in  favor  from  the  time  of  Glanville,  and  at  the  date 
of  Bracton's  work  had  become  the  most  ordinary  method  of 
deciding  fact.  (&) 

NOTE  (35).    See  p.  234 

The  question  of  mere  right  has  from  the  earliest  period  been 
decided  by  wager  of  Mattel,  and  at  one  time  could  be  decided 
in  no  other  manner.  Afterwards,  in  the  reign  of  Henry  II., 
the  assise  or  law  of  that  monarch  referred  to  in  the  last  note 
gave  the  tenant  in  a  writ  of  right  the  alternative  of  having 
this  question  tried  either  by  wager  of  battel  or  a  recognition 
by  jurors  to  be  selected  by  four  knights;  (I)  while  it  ap- 
pointed for  questions  of  seisin  (as  already  mentioned)  a  rec- 

(K)  See  Co.  Litt.  159  b. 

(i)  Tune  ex  consensu  ipsarum  partium,  tune  etiara  de  consilio  curios.  Glan.,  lib.  13, 
ch.  2. 

(fc)  The  same  account  of  the  establishment  of  trial  by  jury  Is  given  by  Mr.  Reeves,  vol.  1, 
177,  834,  and  is  perhaps  stated  in  no  other  work  with  sufficient  precision.  A  careful  perusal 
«f  Glanville  and  Bracton  will  leave  no  doubt  as  to  its  correctness. 

(I)  Glan.,  lib.  2,  ch.  7.  11;  1  Reeves,  125,  127.  ; 


536  APPENDIX.  NOTE  (36). 

ognition  of  a  more  ordinary  kind ;  and  as  the  latter  obtained 
the  name  of  a  recognition  of  assise,  so  the  former  was  called, 
by  way  of  distinction  from  it,  the  grand  assise  (magna  assisa). 
The  question  of  mere  right  from  this  time  continued  to  be 
exclusively  determinable  by  battel  or  the  grand  assise ;  and 
either  from  its  solemnity,  or  the  difficulty  that  attended  it  in 
point  of  proof,  (ra)  was  never  allowed  to  be  tried  by  a  com- 
mon jury. 

NOTE  (36).     See  p.  236. 

The  possibility  of  being  exposed  to  this  disadvantageous 
method  of  decision,  the  wager  of  law,  has  long  led  plaintiffs 
to  avoid  the  forms  of  action  in  which  it  is  allowed.  Accord- 
ingly debt  on  simple  contract  and  detinue  are  much  less  fre- 
quently used  than  in  ancient  times,  and  have  been  nearly  sup- 
planted by  assumpsit  and  trover,  which  are  forms  of  remedy 
respectively  applicable  to  the  same  cases;  but  not  admitting 
that  mode  of  trial. 

The  wager  of  law  (vadiato  legis\  which,  under  different 
names  and  in  different  forms,  prevailed  over  all  Europe  in  the 
middle  ages,  was  fully  established,  not  only  among  the  Nor- 
mans but  the  Anglo-Saxons.  The  name,  however,  is  clearly 
of  Norman  derivation ;  for  in  the  old  law  of  Normand}r,  lex  sig- 
nified a  mode  of  proof  or  trial,  and  vadiare  was  to  give  pledge 
to  produce  such  proof  or  meet  such  trial.  Thus,  the  Coustu- 
mier  speaks  of  the  lex  apparens,  the  lex  probdbilis,  the  lex  sim- 
plex (otherwise  called  deraisind),  as  so  many  modes  of  decid- 
ing causes,  (n)  Now  it  appears,  by  the  account  given  of  the  lex 
simplex,  that  it  was  equivalent  to  our  wager  of  law;  (o)  and 
that  the  party  who  adopted  this  proceeding  was  said  vadiare 
legem  simplicem,  or,  more  shortly,  vadiarelegem^  (p}  whence 
undoubtedly  the  term  vadiatio  legis,  or  wager  of  law,  as  used 
in  the  English  courts.  Though  this  deduction  of  the  name  be 
clear  and  indisputable,  Lord  Coke  (whose  derivations  do  not 

(TO)  See  Bract.  818  b. 

(n)  For  example,  it  Is  said:  Sclendum  est  quod  omnls  querela  de  mobill  possessions, 
cum  res  in  causa  deducta,  decem  solidorum  usualis  monetse  precium  non  excedat,  per 
legem  simplicem  habet  terminari.  Si  vero  dictum  excedit  precium,  per  legem  deducitur 
apparentem.  Grand  Coust.  Ixxxvii.  And  again:  Est  quaedam  lex  quse  probabilis  sive 
monstralis  in  laicali  curia  nuncupatur.  Ibid.,  cxxv.  See,  also,  Ducange  Gloss.,  verbo  Lex, 
where  it  appears  that  the  wager  of  battel  was  sometimes  called  lex  duelli. 

(o)  Grand  Coustum.,  Ixxxiiii,  cxxvi. 

(p)  Ibid.,  cxxvi. 


NOTE  (37).  APPENDIX.  537 

always  satisfy  the  antiquarian)  gives  the  following  origin  of 
the  phrase,  in  which  he  is  followed  by  Blackstone :  "  It  is 
called  wager  of  law,  because  of  ancient  time  he  put  in  surety 
to  make  his  law  at  such  a  day ;  and  it  is  called  making  of  his 
law,  because  the  law  doth  give  such  a  special  benefit  to  the 
defendant,  to  bar  the  plaintiff  forever  in  that  case."  (g) 

NOTE  (37).    See  p.  236. 

Such  of  the  different  modes  of  trial  now  in  use  as  are  of 
extraordinary  and  limited  application  are  the  relics  of  a  very 
ancient  system  of  deciding  fact,  established  before  the  full 
introduction  of  trial  by  jury,  (r)  Though  it  would  be  foreign 
to  the  present  purpose  to  attempt  to  explain  fully  the  meaning 
and  policy  of  this  curious  system,  yet  there  is  one  general  ob- 
servation which  throws  so  much  light  on  that  subject  that  it 
may,  without  impropriety,  be  here  introduced.  The  observa- 
tion relates  to  the  defective  state,  during  those  barbarous 
ages  when  the  foundations  of  this  system  were  laid,  of  the 
proper  and  rational  sources  of  judicial  proof.  In  times  when 
the  arts  of  reading  and  writing  were  comparatively  rare,  and 
when  parchment  had  not  yet  been  superseded  by  the  inven- 
tion of  paper,  written  documents  were  of  course  by  no  means 
so  frequently  in  use  as  the  occasions  of  life  would  require, 
even  after  making  due  allowance  for  the  comparative  paucity, 
at  that  period,  of  commercial  transactions.  This  circumstance 
at  once  increased  the  necessity  for  resorting  to  living  wit- 
nesses, and,  at  the  same  time,  by  rendering  perjury  less  open 
to  conviction,  must  have  tended  to  diminish  the  security  of 
that  mode  of  proof.  Whatever  the  cause,  the  fact  is  certain 
that  perjury  was  at  this  era  a  crime  of  peculiarly  frequent 
occurrence,  and,  consequently,  oral  testimony  a  species  of 
evidence  of  the  lightest  and  most  doubtful  kind.  It  seems 
evident,  too,  that  in  a  scanty  population  there  must  have 
been  considerable  less  publicity  than  in  the  present  day  in 
almost  every  kind  of  occurrence ;  and  that  while  witnesses 
were,  on  the  one  hand,  less  to  be  depended  upon,  so,  ou  the 

(g)  Co.  Litt.  294  b,  295  a.    And  see  3  Bl.  Com.  341. 

(r)  Considerable  insight  into  this  ancient  system  of  trial  may  be  obtained  by  au  ttttcnt- 
ive  perusal  of  the  work  of  Glanville,  the  earliest  and  best  authority.  It  is  a  subject,  how 
ever,  that  has  never  yet  been  thoroughly  elucidated. 


538  APPENDIX.  NOTE  (37). 

other,  they  were  less  easily  to  be  found.  In  this  state  of 
things  it  is  not  surprising  that  attempts  should  be  made  to 
strengthen  this,  the  ordinary  mode  of  judicial  investigation, 
by  such  corroborative  tests  as  the  opinions  and  manners  of 
the  times  might  approve,  or  to  supply  the  want  of  it  by  other 
kinds  of  probation.  Thus  the  oath  of  the  defendant  himself, 
in  opposition  to  the  claim  of  his  adversary,  would,  under  such 
circumstances,  naturally  have  but  little  weight.  At  the  same 
time  he  might  be  unprovided  with  writing  or  witness.  He 
was,  therefore,  by  way  of  suppletory  expedient,  required  to 
support  his  own  oath  by  wager  of  law,  that  is,  by  the  adduc- 
tion of  many  other  persons  as  his  compurgators,  who,  though 
unacquainted  with  the  transaction  itself,  knew  the  character 
of  the  party  and  had  sufficient  confidence  in  it  to  swear  that 
they  believed  his  assertion  true.  'Thus,  too,  when  this  proof 
by  wager  of  law  was,  from  the  importance  of  the  question 
or  for  other  reasons,  deemed  inapplicable,  and  that  by  wit- 
nesses alone  considered  insufficient,  resort  was  often  had  to 
judicial  combat,  as  the  best  means  that  offered  itself  for  de- 
ciding between  opposite  assertions,  (s) 

With  respect  to  the  great  prevalence  of  perjury  at  this 
period,  the  latest  and  one  of  the  most  able  and  accurate  de- 
lineators of  the  middle  ages  thus  notices  that  feature  in  the 
morals  of  the  day: 

"  One  crime,  as  more  "universal  and  characteristic  than 
others,  may  be  particularly  noticed.  All  writers  agree  in  the 
prevalence  of  judicial  perjury.  It  seems  to  have  almost  in- 
variably escaped  human  punishment;  and  the  barriers  of  su- 
perstition were  in  this,  as  in  every  other  instance,  too  feeble 
to  prevent  the  commission  of  crimes.  Many  of  the  proofs 
by  ordeal  were  applied  to  witnesses  as  well  as  those  whom 
they  accused ;  and  undoubtedly  trial  by  combat  was  preserved 
in  a  considerable  degree,  on  account  of  the  difficulty  experi- 
enced in  securing  a  just  cause  against  the  perjury  of  witnesses. 
Robert,  king  of  France,  perceiving  how  frequently  men  fore- 
swore themselves  upon  the  relics  of  saints,  and  less  shocked 

(s)  In  the  time  of  Glanville  the  wager  of  battcl  was  applied  not  only  to  the  question  of 
mere  right,  but  to  a  great  variety  of  other  cases;  and  was  one  of  the  most  general  and 
ordinary  modes  of  deciding  fact.  Thus,  he  says:  Probari  solet  res  debita  ex  empto,  vel  ex 
commodato,  generali  probandi  modo  in  curia,  scilicet  per  scriptum  vel  per  duellum.  Glan., 
lib.  10,  ch.  17. 


.NOTE  (38).  APPENDIX.  539 

apparently  at  the  crime  than  at  the  sacrilege,  caused  an  empty 
reliquary  of  crystal  to  be  used  that  those  who  touched  might 
incur  less  guilt  in  fact  though  not  in  intention.  Such  an  anec- 
dote characterizes  both  the  man  and  the  times."  (£) 

NOTE  (38).     See  p.  2541 

The  only  material  authorities  on  the  subject  of  pleading  of 
date  prior  to  the  reign  of  Edw.  I.  are  the  treatise  of  Gran- 
ville,  in  the  time  of  Hen.  II. ;  that  of  Bracton,  in  the  latter 
end  of  the  reign  of  Hen.  III. ;  and  the  Placitorum  Abbrevia- 
tio,  which  contains  extracts  from  the  Records  from  Ric.  I.  to 
Edw.  II.  inclusive.  From  these  authorities  it  would  appear 
that  the  manner  of  pleading  was  extremely  imperfect,  and 
many  of  the  most  important  rules  of  the  science  either  un- 
known or  but  partially  observed  in  practice  so  late  as  the  end 
of  the  reign  of  Hen.  III.  On  the  other  hand,  the  very  earliest 
of  the  Year-books  (which  begin  with  the  reign  of  Edw.  II.) 
exhibit  proofs  that  the  pleading  was  by  that  time  in  a  com- 
paratively perfect  state.  It  is  therefore  that  the  author  has 
been  led  to  consider  the  reign  of  Edw.  I.  as  the  era  at  which 
the  manner  of  allegation  may  be  said  to  have  been  first  method- 
ically formed  and  cultivated  as  a  science. 

It  would  be  easy  to  produce  numerous  proofs  that  the 
pleading  was  very  imperfectly  regulated  till  the  end  of  the 
reign  of  Hen.  III.  But  the  following  will  suffice: 

Glanville  gives  scarcely  any  rule  that  can  strictly  be  con- 
sidered as  a  rule  of  pleading,  though  he  is  copious  on  subjects 
which  would  have  led  him  to  notice  such  rules  had  they  ex- 
isted, (u) 

In  the  time  of  John  we  find  instances  of  pleas  which  neither 
traverse  nor  confess.  Thus,  in  answer  to  a  fine,  it  is  pleaded 
quod  si  finis  ille  factus  fuit  per  deceptionem  et  fraudem,  fac- 
tus,  fuit,  etc.  (a?)  Again,  where  a  defendant  had  pleaded  a  deed 
made  by  the  father  of  the  plaintiff,  the  plaintiff  replies,  quod 
cartam  quam  profert  sub  nomine  patris  sui,  neo  dedicit,  nee 
concedit,  etc.,  sed  qualiter  carta  ilia  facta  fuit  vel  a  quo,  sem- 

(t)  Hallam's  View  of  the  State  of  Europe  during  the  Middle  Ages,  voL  2,  p.  456. 

(«)  Glan.,  lib.  12,  ch.  14 

fcc)  Plac.  Ab.  38;  Bedd.,  rot.  4. 

1  Note  referred  to  in  1  Chitty,  PL,  ch.  & 


540 


APPENDIX. 


NOTE  (38). 


per  postquam  facta  fuit,  presentavit  pater  ejus  personam, 
etc.  (y) 

In  the  same  reign  numerous  examples  of  the  fault  of  du- 
plicity^ i.  <?.,  pleading  several  allegations  in  answer  to  the 
same  matter,  are  to  be  found.  Thus,  in  the  assise  of  mortan- 
cestor,  the  tenant  pleads  that  the  demandant  was  seised  him- 
self, post  obitum  of  the  ancestor;  and,  by  fine,  of  which  he 
produces  the  cirograph,  quitclaimed,  etc.,  the  land.  The  de- 
mandant replies :  Quod  ipse  nunquam  fuit  seisitus  de  terra 
quam  petit,  nee  unquam  earn  tenuit.  Et  inde  ponit  se  super 
assisam,  etc.  Et  cum  Tiabuerit  seisinam  talem,  etc.,  bene  os- 
tendet  quod  concordiam  illam  non  fecit,  necfacere  potuit.  Et 
petit  sibi  allocari  quod  cirographum  illud,  non  est  factum  in 
forma  aliorum  cirographorum,  etc.,  and  so  argues  against  its 
genuineness,  (z) 

In  the  same  reign  the  fault  of  argumentativeness  appears  to 
have  been  common.  Of  this  the  following  entry  may  serve 
as  an  example :  Dicit  quod  Ranulphus  non  potuit  dare  illam 
terram  in  maritagio,  quid  o~biit  inde  seisitus.  Et  inde  ponit  se 
super  juratam.  (a) 

All  these  are  clear  violations  of  rules  of  pleading  subse- 
quently established  and  still  in  force,  and  appear  to  have  en- 
countered no  objection  from  the  opposite  party. 

In  the  reign  of  Hen.  III.  much  attention  certainly  appears 
to  have  been  paid  to  the  manner  of  pleading,  and  Bracton  not 
only  makes  constant  reference  to  that  subject,  but  has  a  divis- 
ion of  his  work  expressly  allotted  to  it  under  the  head  De 
exceptionibus.  Yet,  on  careful  perusal  of  that  work,  the  most 
convincing  proofs  may  be  found  that  the  regular  and  method- 
ized plan  of  allegation,  which  we  find  soon  afterwards  estab- 
lished and  which  has  since  received  the  name  of  the  system, 
of  pleading,  was,  in  his  time,  not  fully  formed.  For,  without 
insisting  much  on  the  remark  that  the  very  title,  De  exception- 
ibuSy  is  borrowed  from  the  Pandects,  and  is  rather  applicable  to 
the  nature  of  the  Roman  than  the  English  pleading,  and  that  he 
often  uses  the  appellations  peculiar  to  the  civil  law,  (5)  it  will  be 
found  that  scarcely  any  of  the  more  important  and  funda- 

(y)  Ibid.  92;  Kent,  rot.  15.    And  see  48  Line.,  rot.  7;  89  Northumb.,  rot.  6,  etc. 

(z)  Ibid.  88;  Sussex,  rot.  22.    And  see  48  Line.,  rot.  7;  60  Buck.,  rot.  2;  59  Lone.,  rot  8,  eta. 

(a)  Plac.  Ab.,  79  Warr.,  rot.  2. 

(J>)  For  example,  except  io  judicis  non  tui—exceptio  falsi  procurator  if.   Bract.  400  a. 


NOTE  (39).  APPENDIX.  541 

mental  rules  of  the  present  system  are  noticed  by  this  author. 
Even  the  term  "  issue  "  does  not  occur,  and,  instead  of  it,  is 
used  the  civil  law  term  litis  contestatio,  (c)  a  phrase  by  no 
means  exactly  parallel,  though  expressive  of  the  same  general 
idea.  The  rule  against  duplicity,  indeed,  is  given,  but  in  such 
a  form  as  to  raise  a  doubt  whether  its  true  extent  and  object 
were  understood  by  the  writer.  Si  plures  peremptorise  (ex- 
ceptiones)  actionum  concurrant,  unam  debet  tenens  proponere 
et  probare,  etc.,  quia  si  tenens  cum  duas  peremptorias  propo- 
neret  vel  plures  exceptiones,  in  probatione  unis  deficeret,  posset 
recursum  habere  ad  alias,  et  probare,  sicut  posset  se  pluribus 
laculusdefendere;  quod  esse  non  debet,  cum  ei  sufficere  debeat 
tantum  probatio  unius.  (d)  Again,  it  may  be  observed  that 
neither  the  rule  obliging  the  pleader  to  traverse  or  confess, 
nor  that  against  argumentative  pleading,  appears  to  have  been 
perfectly  established  in  the  time  of  this  author.  Thus,  he 
mentions  it  as  one  of  the  pleas  to  an  appeal  of  rape :  Quod 
anno  et  die  quo  hoc  fieri  defuit,  fuit  alibi  extra  ragnum,  vel  in 
provincia,  in  tarn  remotis  partibus,  quod  verisimile  esse  non 
poterit  quod  hoc  quod  ei  imponitur,  fieri  posset  per  ipsum.  (e) 
And  again,  among  the  pleas  to  an  assise,  the  following  is  men- 
tioned: Eiberum  tenementum  habere  non  potuit,  quia  non 
tenuit  tenementum  illud  nisi  ad  terminum  annorum,  etc.  (f) 

NOTE  (39).    See  p.  255. 

The  issue  is  thus  defined  by  Lord  Coke :  "  Issue,  exitus,  a 
single,  certain  and  material  point  issuing  out  of  the  allegations 
or  pleas  of  the  plaintiff  and  defendant,  consisting  regularly 
upon  an  affirmative  and  negative  to  be  tried  by  twelve 
men;"  (g)  and  thus  by  Heath,  C.  J. :  "that  point  of  matter 
depending  in  suit  whereon  the  parties  join,  and  put  their 
cause  to  the  trial  of  the  jury."  (K)  These  definitions,  besides 
being  too  narrow,  as  extending  only  to  questions  of  fact  and 
to  such  questions  of  fact  as  are  referred  to  one  particular 

(c)  Bract.  373  a,  172  a,  435  b. 

(d)  Bract.  400  b.    Something  seems  to  be  omitted  In  tnid  pa&fege,  which  renders  its 
construction  imperfect. 

(.e)  Ibid.  148  a. 
(/)  Co.  Litt.  126  a. 
(g)  Bract.  268  a. 
(h)  Heath's  Maxima,  cb.  rr. 
35 


542  APPENDIX.  NOTE  (40). 

mode  of  trial,  viz.,  that  by  jury,  seem  to  be  also  defective  in 
clearness  and  precision.  The  definition  of  the  issue  by  Mr. 
Justice  Blackstone  is  as  follows:  "When,  in  the  course  of 
pleading,  they  come  to  a  point  which  is  affirmed  on  one  side 
and  denied  on  the  other,  they  are  then  said  to  be  at  issue."  (*) 
Even  this  does  not  appear  to  be  perfectly  accurate,  for  it 
would  include  a  point  contradicted  by  protestation,  (k)  The 
definition  by  Finch  is  more  unexceptionable.  "  An  issue  is, 
when  both  the  parties  join  upon  somewhat  that  they  refer 
unto  a  trial,  to  make  an  end  of  the  plea  "  (i.  e.t  suit).  (1} 

NOTE  (40).     See  p.  257. 

We  find  in  the  Assises  de  Jerusalem  (as  to  which  vide  supra, 
p.  454)  the  following  directions  to  the  pleader  on  the  subject 
of  brevity  and  precision:  As  plus  brief ves  paroles  que  il  pora, 
die  sa  parole  —  car  les  plus  briefves  paroles  et  entendaument 
dites,  sont  meaus  entendues  et  retenues  et  recordees  et  jugees, 
et  quant  mestier,  que  les  autres:  i.  <?.,  let  the  pleader  make 
his  claim  in  the  shortest  form  of  words  possible,  and  let  him 
speak  as  intelligibly  as  he  can,  for  the  shortest  and  most  intel- 
ligible expressions  are  the  best  heard  and  retained,  and 
recorded  and  adjudged  upon,  (m) 

The  remark  in  the  text  may  also  be  illustrated  by  the  fol- 
lowing curious  specimens  of  the  manner  of  pleading  among 
the  Lombards,  as  preserved  in  a  compilation  of  undoubted 
authenticity : 

"  Petre,  te  appellat  Martinus,  quod  tu  malo  ordine  (i.  e.,  in- 
yuste)  tenes  terram  in  tali  loco  positam.  Ilia  terra  mea  pro- 
pria  est,  per  succession  em  patris  mei.  Non  debes  ei  succedere, 
quia  habuit  te  ex  sua  ancilla.  Yere;  sed  fecit  earn  widerbora 
(i.  e.,  liberam)  sicut  est  Edietum,  et  tulit  ad  uxorem.  Appro- 
bet  ita,  aut  amittat."  (n) 

"  Petre,  te  appellat  Martinus,  quod  terra  quas  in  tali  loco 
est,  sit  sua;  tu  earn  detines.  Etiam,  quia  possedi  per  xxx. 
annos.  Yere  possedisti,  sed  per  chartam  falsam  quam  dixisti 
patrem  meum  fecisse  tibi.  Non  est  verum.  Ita.  Probato."  (o) 

(0  8  Bl.  Com.  818 

(k)  As  to  protestation,  vide  supra,  p.  323. 

(0  Finch.  Law,  896. 

(m)  Assises  de  Jems.  xxx. 

(n)  Leges  Langobard.  ap.  Muratori.,  Leges  Liutpran.,  lib.  VI,  68. 

Co)  Ibid.,  Leges  Liutpran.,  lib.  VI,  62. 


NOTES  (41),  (42).  APPENDIX.  543 

"  Petre,  te  appellat  Martinus,  quod  tu  dedisti  sibi  vadia  de 
dare  sibi  unum  solidum  III.  Kalend.  August!.  Non  dedi  ipsa 
vadia.  Tune  ipse  qui  appellat,  pro.bet.  Si  non  potuerit,  ipse 
qui  appellatus  est,  juret  quod  in  tali  tenore  vadia  non  dedit."Q?) 

The  following  specimen  is  of  a  somewhat  later  era,  when 
Lombardy  had  fallen  under  the  Francic  dominion: 

"  Petre,  te  appellat  Martinus  quod  tu  tenes  malo  ordine, 
terrain  in  tali  loco.  Ipsa  terra  mea  propria  est,  per  chartam 
quam  tu  mihi  fecisti ;  et  ecce  chartam.  Ego  feci  ipsam  char- 
tam, sed  per  virtutem  (i.  e.,  vim).  Non  fecisti.  Yis  ei  pro- 
bare?  Yolo.  Yadiate  pugnam."  (g) 

These  specimens  of  the  pleading  of  a  barbarous  nation  have 
<lrawn  from  a  foreign  writer  of  superior  taste  a  warm  eulo- 
gium :  "  Le  formole  dell'  intentar  le  liti,"  says  Denina,  "  erano 
si  semplici,  e  si  spiccie,  e  si  chiare,  che  non  cedevano  a  quella 
si  giustarnente  lodata  forma  del  procedere  che  regna  tuttaria 
in  alcuni  tribunalli  dell'  eta  nostra."  (r) 

NOTE  (41).     See  p.  258. 

Omnia  haeo  (says  Heineccius,  speaking  of  the  pleadings  of 
the  Civilians  and  Canonists  as  opposed  to  those  of  ancient 
Germany)  non  viva  voce  proferebant,  sed  scripta  offerebant 
judici ;  ex  eoque  nata  est  ingens  actorum  forensium  moles  — 
quum  ssepe  integris  voluminibus,  causam  suam  tueantur  liti- 
gantes,  quam  olim,  paucissimis  verbis,  non  minus  dextrg, 
perorabant.  (*) 

NOTE  (42).     See  p.  258. 

In  Bracton,  as  observed  in  a  former  note,  the  attainment 
of  the  issue  is  called  litis  contestatio,  which  is  a  word  used  by 
the  Civilians  to  express  the  same  general  idea.  Thus,  he  says : 
Usque  ad  litis  contestation  em., —  scilicet  quousque  fuerit  praBcise 
responsum  intentioni  petentis,  et  ita  quod  tenens  se  posuerit  in 

( p)  Ibid.,  Leges  Rachis,  ch.  1. 

(9)  Ibid.,  Leges  Ottonis  IL  ch.  5.  The  above  extracts  are  taken  from  the  Leges  Longo- 
bardicse,  with  the  Formulae  Veteres  annexed,  as  published  from  ancient  MS.  by  Muratori, 
in  his  Script.  Rer.  Italic.,  vol.  i.  These  laws  had  been  previously  published  by  Lindeubrog> 
'but  without  the  formulas. 

(r)  Bivoluzioni  d'ltalia  di  Denina,  vol.  1,  p.  316. 

(*}  J.  G.  Heinecc.  El  em.  Jur.  Germ.,  lib.  Ill,  tit.  rv,  sec.  CLvm. 


54:4  APPENDIX.  NOTE  (43). 

magnam  assisara,  vel  defenderit  per  Duellum.  (f)  And  in  an- 
other place:  Non  tenetur  aliquis  ha3res  de  facto  scilicet  de 
disseysina  antecessoris  sui,  quoad  pcenam  disseysina3,  licet 
teneatur  ad  restitutionem ;  et  hoc  nisi  Us  contestata  fuerit  cum 
suo  antecessore,  etc.  (u) 

It  may  be  worth  while  to  observe  here  that  Blackstone's 
idea  of  the  meaning  of  this  term  of  the  civil  law  is  inaccurate. 
He  considers  it  as  "  a  general  assertion  that  the  plaintiff  hath 
no  ground  of  action."  (a?)  This,  however,  is  not  the  sense  in 
which  it  is  properly  or  commonly  used  in  the  civil  law,  though 
it  may  occasionally  have  that  meaning.  It  is  clear  that  its 
usual  signification  is  exactly  that  in  which  it  is  used  by  Brae- 
ton,  viz.,  the  development  of  the  point  in  controversy,  or,  as 
it  is  now  expressed,  the  coming  to  issue.  "  In  common  par- 
lance, denying  the  truth  of  the  defendant's  exception,  or,  in- 
deed, whenever  parties  come  to  direct  affirmance  on  one  side 
and  denial  on  the  other,  is  called  a  contestation  of  suit."  (y) 
Litis  contestatio  non  aliud  est  quam  intentio  actoris,  et  con- 
tradictio  seu  depulsio  rei ;  adeo  ut  ex  actione  et  opposita  per- 
emptoria  exceptione,  consurgat;  et  comprehendat  illud  in  quo 
tota  controversia  consistat.  (s)  And  Fortesque  is  express  to 
the  point ;  for,  in  treating  of  the  method  of  proof  in  the  civil 
law,  he  says :  Si  coram  judice  contendentes  ad  litis  perveniant 
contestationem,  super  materia  facti,  quam  legis  AngliaB,  periti, 
exitum  placiti  (the  issue)  appellant,  exitus  hujusmodi  veritas, 
per  Leges  Civiles,  testium  depositione,  probari  debet.  (a) 

NOTE  (43).     See  p.  261. 

That  juries  were  originally  composed  of  witnesses,  or  per- 
sons cognizant  of  their  own  knowledge  of  the  fact  in  question, 
seems  to  be  sufficiently  proved  by  the  following  authorities  r 

In  an  assise  of  darreign  presentment,  in  the  reign  of  Rich- 
ard L,  the  jurors  find  a  special  verdict  in  these  terms:  Assisa 
dicunt  quod  nunquam  viderunt  aliquam  personam  pra3sentari 
ad  ecclesiam  de  Duneston,  sed  semper  tenuerunt  person®,  per- 

(f)  Bract.  373  a. 

(u)  Ibid.  172  a. 

(2)  3  Bl.  Com.  296. 

(y)  Brown's  Civil  Law. 

(*)  Voet.  ad  Pandect.,  lib.  V,  tit.  i,  sec.  144. 

(a)  Fortescue  de  Laud.,  ch.  20. 


NOTE  (4:4).  APPENDIX.  545 

sona  in  personam,  ut  de  patre  in  filium,  usque  ad  ultimam  per- 
sonam  quae  ultimo  obiit.  (5) 

In  an  assise  of  novel  disseism,  in  the  same  reign,  there  is 
the  following  entry:  Assisa  venit  recognitura  si  Adam  de 
Greinvill  et  "Willielraus  de  la  Folie  dissaisaverunt  injuste  et 
sine  judicio  Willielmum  de  "Weston  de  libero  tenemento  suo 
in  Suto,  post  primam  coronationem  Domini  Eegis.  Juratores 
dicunt  quod  non  viderunt  unquam  alium  saisitum  de  tene- 
mento illo,  nisi  "Willielmum  de  la  Folie.  Et  quod  nesciunt  si 
Willielmus  de  la  Folie  dissaisisset  eum  inde  vel  non.  Consid- 
eratum  est  quod  alii  Juratores  eligantur  qui  melius  sdant  rei 
veritatem.  Dies  datus  est  eis  ad  diem  Mercurii.  (c) 

In  the  reign  of  John  there  is  the  following  entry :  Jura- 
tores  dicunt  quod  ecclesia  Sanctse  Helenas  de  G.  nunquam  fuit 
capella  pertinens  ad  acclesiam  Sancti  Michaelis  super  Wir  quaa 
est  de  donatione  Dom  Regis ;  sed  semper  temporibus  suisjudi- 
caverunt  illam  esse  matricem  ecclesiam.  (d) 

So,  upon  a  question  whether  the  plaintiff,  claiming  to  be 
tenant  by  the  curtesy,  had  issue  by  his  wife,  Bracton  says :  Si 
dicant  Juratores  quod  fiene  mderunt  eum  seysitum  et  postea 
ejectum  per  tenentem,  sed  de  aliquo  puero  nihil  sciunt,  quia 
mater  obiit  in  pariendo  extra  comitatum,  in  remotis, —  quia 
eorum  veredictum  insufflciens  est,  etquia  ipsi  ignorare  possunt 
ea  quozfiunt  in  remotis,  recurrendum  erit  ad  comitatum,  et  ad 
vicinetum  ubi  mater  oliit;  et  ibi  facta  inquisitione  de  veritate, 
terminetur  negotium.  (e) 

And  see  2  Keeves,  270,  where  the  doctrine  in  support  of 
which  these  authorities  are  cited  is  distinctly  laid  down, 

NOTE  (44).     See  p.  2»63. 

The  author  being  the  first  who  has  attempted  to  develop  the 
principles  on  which  the  system  of  pleading  is  founded,  he  is 
unable  to  cite  any  direct  authority,  either  for  the  enumeration 
contained  in  the  text  of  the  objects  which  that  system  con- 
templates, or  even  for  the  account  there  given  of  the  proper- 
ties or  qualities  required  in  the  issue. 

(6)  Plac.  Ab.  3  Norfolc. 

(c)  Plac.  Ab.  11  Wiltesir. 

(d)  Plac.  Ab.  94;  Lane.,  rot.  3. 

(e)  Bract.  216  a. 


546  APPENDIX.  NOTE  (45). 

Yet  passages,  sufficient  to  justify  both  the  one  and  the 
other,  may  be  easily  collected  from  the  books. 

First,  as  to  the  properties  of  the  issue. 

Lord  Coke  defines  the  issue  to  be  a  "single,  certain  and 
material  point,  issuing  out  of  the  allegations  or  pleas  of  the 
plaintiff  and  defendant."  (f)  He  considers  these  properties, 
therefore,  to  be  of  the  very  definition  of  the  term ;  though, 
perhaps,  they  are  more  properly  incidental  to  the  issue  than 
of  its  essential  nature.  So,  it  is  laid  down  in  Corny ns'  Digest, 
that  the  issue  must  be  upon  a  material  point,"  (g)  and  "  must 
be  upon  a  single  and  certain  point."  (A)  So  it  is  said  by  Lord 
Coke  that  the  law  "  prefers  and  favors  certainty,  as  the  mother 
of  quiet  and  repose,  to  the  intent  that  either  the  court  shall 
adjudge  thereupon  if  the  plaintiff  demurs  or  that  a  certain 
issue  may  be  taken  upon  one  certain  point"  etc.  (i)  So,  in  the 
Year-books  we  find  the  court  interrupting  the  pleader  with 
this  remark :  "  Vous  dites  chose  que  veot  avoir  deux  issues:  — 
tenez  vous  al  tine."  (&) 

With  respect  to  the  doctrine  that  the  system  of  pleading 
contemplates  the  different  objects  enumerated  in  the  text,  and 
that  these  form  the  secret  foundation  of  most  of  its  principal 
rules,  the  author  must  refer  for  his  chief  authority  to  the  in- 
trinsic evidence  arising  from  the  consideration  of  the  rules 
themselves,  as  subsequently  explained  in  this  work.  In  treat- 
ing, however,  of  these  different  rules,  he  will  be  able  occasion- 
ally to  offer  some  citations  from  the  books,  in  a  great  measure 
confirmatory  of  the  same  view. 

NOTE  (45).     See  p.  267. 

The  general  effect  of  these  statutes  relative  to  special  de- 
murrer is  well  expressed  by  Lord  Hobart,  who  says,  in  refer- 
ence to  the  27  Eliz.,  ch.  5 :  "  The  moderation  of  this  statute 
is  such  that  it  does  not  utterly  reject  form,  for  that  were  a 
dishonor  to  the  law,  and  to  make  it,  in  effect,  no  art,  but  re- 
quires only  that  it  be  discovered  and  not  used  as  a  secret  snare 

( /)  Co  Litt.  126  a. 

(g)  Com.  Dig.,  Pleader  (R.  8). 

(ft)  Com.  Dig.,  Pleader  (R.  4). 

(f)  10  Rep.  90  a. 

(k)  1  Ed.  2, 14. 


NOTES  (46),  (47).  APPENDIX.  547 

to  entrap.  And  that  discovery  must  not  be  confused  and  ob- 
scure, but  special ;  therefore  it  is  not  sufficient  to  say  that  the 
demurrer  is  for  form;  but  he  must  express  what  is  the  point 
and  specialty  of  form  that  he  requires."  (I) 

NOTE  (46).     See  p.  276. 

It  is  true  that  in  the  writ  of  right  the  mise  on  the  mere  right 
(as  to  which  see  pp.  189,  287)  is  usually  considered  as  the  gen- 
eral issue ;  and  in  dower  that  name  is  often  given  to  the  plea 
of  ne  unques  seisie  que  dower.  But  though  these  pleas  resem- 
ble the  general  issues  in  their  frequent  use  and  extensive  ap- 
plication, they  appear  not  to  fall  within  the  strict  definition 
of  that  term,  as  they  deny  neither  the  whole  nor  the  principal 
part  of  the  count.  In  fact,  though  they  tender  a  kind  of  issue, 
they  do  not  contain,  in  terms,  any  denial  or  traverse  of  the 
count,  and  are  therefore  anomalies  or  exceptions  in  the  sys- 
tem of  pleading.  The  reason  is,  perhaps,  to  be  found  in  the 
great  antiquity  of  these  actions,  the  writ  of  right  and  dower, 
which  were  in  full  use  at  least  as  early  as  the  time  of  Glan- 
ville  —  a  period  considerably  anterior  to  the  complete  estab- 
lishment of  the  doctrine  of  issue,  and  of  the  rules  by  which  it 
is  produced. 

It  is  a  dictum  of  Ashurst,  J.,  that  there  is  no  general  issue 
in  quare  impedit;  (m)  but  this  seems  not  to  be  accurate,  as  ne 
disturba  pas  is  evidently  in  the  nature  of  a  general  issue  and 
is  considered  as  such  in  many  of  the  books. 

NOTE  (47).     See  p.  291. 

Where  the  plaintiff  alleges  a  seisin  in  fee  in  his  father,  the 
lessor,  from  whom  he  claims  by  descent,  the  defendant  has 
the  option  of  traversing  either  that  at  the  time  of  making 
the  lease  tne  father  was  seised  in  fee,  or  that  the  reversion  in 
fee  belonged  to  the  father  after  making  the  lease,  or  that  the 
reversion  descended  to  the  plaintiff ;  for  all  these  allegations 
are  contained  in  the  declaration,  and  the  denial  of  any  of 
them  is  a  sufficient  answer.  (») 

(I)  Hob.  232. 
(m)  3  T.  R.  158. 
fr)  2  Wils.  145. 


54:8  APPENDIX.  NOTES  (48),  (49). 

NOTE  (48).     See  p.  297. 

Mr.  Reeves,  in  his  able  History  of  the  English  Law,  has 
treated  of  the  origin  of  special  traverses,  but  not  in  such  a 
manner  as  to  form  any  exception  to  the  remark  made  in  the 
text ;  for  his  account  relates  rather  to  the  manner  in  which 
they  were  invented  and  introduced  than  to  their  use  and 
object.  (0) 

NOTE  (49).     See  p.  299. 

Our  earliest  records  present  many  instances  of  what  may 
be  considered  as  special  traverse  in  a  crude  and  imperfect 
form.  As  these  tend  to  illustrate  the  origin  and  meaning  of 
the  regular  formula  afterwards  adopted  and  confirm  the 
views  taken  in  the  text  of  the  reasons  and  manner  of  its  in- 
troduction, a  few  specimens  shall  here  be  inserted. 

In  an  assise  of  mortancestor,  the  tenant  pleads  quod  terra 
ilia  pertinet  ad  ecclesiam  suam,  quam  habet  ex  dono  Regis 
Ricardi  et  ecclesia  inde  est  seisita,  etc.  The  plaintiff  then 
denies  the  seisin  of  the  church,  in  this  form :  Robertus  dicit 
quod  pater  suus  inde  fuit  seisitus  in  dominico  suo,  die  qua 
Rex  Ricardus  illam  ecclesiam  dedit  prsedicto  Herberto;  ita 
quod  ecclesia  ilia  tune  non  fuit  seisita,  nisi  de  serviciis  illius 
terras,  (p)  « 

In  trespass  for  entering  the  plaintiff's  court  and  taking 
away  his  ward,  John,  the  defendants  deny  the  trespass,  but 
add  an  explanation:  Dicunt  quod  curiam  praedictam  non 
ingressi  fuerunt,  nee  praedictum  Johannem  ibi  ceperunt,  etc. 
Sed  verum  volunt  dicere;  quod  ipsi  fuerunt  versus  Oxon,  et 
tune  viderunt  praedictum  puerum,  et  puer  percepit  quod  prae- 
dicta  Isabella  (one  of  the  defendants)  fuit  mater  sua,  et  secu- 
tus  est  earn,  usque  domum  suam,  et  adhuc  moram  facit  cum 
e& ;  sed  ipsi  eum  non  duxerunt,  etc.  (q)  On  the  circumstances 
so  disclosed  the  court  decide  that  the  defendare,  in  point  of 
law,  is  guilty  of  taking  away  the  ward. 

In  trespass  for  fishing  in  the  plaintiff's  libera  piscaria,  the 
defendants,  instead  of  generally  denying  the  trespass,  plead 

(o)  8  Reeves,  432. 

(p)  Plac.  Ab.  44;  Staff.,  rot  6  (temp.  Johan.). 

(«)  Plac.  Ab.  134;  Berk.,  rot.  16  (temp.  Hen.  8}.. 


NOTE  (50).  APPENDIX.  549 

that  they  fished  there,  as  in  a  fishery  where  their  ancestors 
and  themselves  had  fished  as  of  their  common  of  fishery, —  ei 
non  in  propria  piscarid  et  liberd  ipsius  Nicholai.  (r) 

NOTE  (50).     See  p.  300. 

The  principle  on  which  the  dbsque  hoc  was  introduced  is 
well  illustrated  by  the  following  case  from  the  Year-books. 
In  a  writ  of  account  brought  against  a  woman  as  guardian  in 
socage,  she  pleaded  "  that  the  ancestor  of  the  infant  held  of 
the  defendant  by  service  of  chivalry,  and  that,  therefore,  she 
took  the  infant  as  guardian  in  chivalry,"  and  prayed  judg- 
ment. To  this  it  was  objected,  "  That  is  no  plea,  unless  you 
go  on  to  say,  without  this,  that  he  held  in  socage;  for  your 
plea  at  present  is  merely  argumentative"  The  plea  was  then 
proposed  in  this  form :  "  He  held  the  land  of  us  by  service  of 
chivalry  —  without  this,  that  we  occupy  the  land  as  guardians 
in  socage."  To  which  it  was  objected,  "  Your  plea  is  still  no 
plea ;  you  ought  to  say,  Without  this,  that  he  held  in  socage' 
for  though  the  defendant  occupy  the  land  as  in  her  own  right, 
she  shall  still  be  charged,  under  these  circumstances,  as  guard- 
ian in  socage."  On  this  the  defendant  took  the  following 
issue :  "  That  he  held  ly  service  of  chivalry,  without  this,  that 
he  held  in  socage"  (s) 

With  respect  to  the  wording  of  this  formula,  dbsque  hoc 
quod,  it  may  be  observed  that  dbsque  hoc  quod,  and  sine  hoc 
quod  (in  the  record),  and  sans  ceo  que  (in  the  viva  voce  plead- 
ing), were  used  as  common  terms  of  denial  at  a  very  early 
period.  Thus,  as  early  as  the  fifteenth  year  of  John,  we  find 
the  phrase,  sine  hoc  quod,  so  occurring,  in  the  Placitorum  Ab- 
breviatio.  (t)  They  were  not,  however,  originally  appropriate 
(as  the  parallel  English  words,  "  without  this  that,"  now  are) 
to  the  case  of  a  special  traverse ;  for  they  were  sometimes 
used  where  the  denial  was  not  of  that  kind ;  and,  on  the  other 
hand,  in  cases  of  special  traverse,  we  sometimes  find  a  substi- 
tution of  other  synonymous  expressions,  such  as  et  non.  (u) 

(r)  Plac.  Ab.  136;  Buck.  (temp.  Hen.  8). 
(«)  10  Hen.  6,  7. 

(t)  Plac.  Ab.  90;  Ebor.,  rot.  83  (temp.  Johan.). 
(w)  Plac.  Ab.  136;  Buck,  cited  supra. 


550  APPENDIX.  NOTES  (51)-(53). 

NOTE  (51).     See  p.  266. 

Color  a  rhetoribus  appellatur,  probabilis  alicujus  rei  causar 
qua  quod  falsura  aut  turpe  est,  velamus.  (a?) 

And  the  following  passage  in  Juvenal  will  readily  recur  to 
the  reader's  recollection : 

Quis  color,  et  quod  sit  causes  genus,  atque  ubi  summa 
Quaestio  quse  veniant  diversa  parte  sagittse, 
Scire  volunt  omnes ;  mercedem  solvere  nemo,  (y) 

See  the  observations  formerly  made  on  the  degree  of  con- 
nection which  the  method  of  pleading  seems  to  have  with  the 
rules  of  the  ancient  logic  and  rhetoric,  supra,  note  (29). 

NOTE  (52).     See  p.  313. 

The  same  quality,  of  admitting  an  apparent  right  in  the 
opposite  party,  belonged  to  the  pleadings  in  the  Roman  law. 
Interdum  evenit  ut  exceptio  quas  prima  facie  justa  videtur} 
tamen  inique  noceat;  quod  cum  acciditj  alia  allegatione  opus 
est,  adjuvandi  actoris  gratia, —  quae  replicatio  vocatur;  quia 
per  earn  replicatur,  atque  resolvitur  jus  exceptionis.  Rursus 
interdum  evenit,  ut  replicatio  quaB  prima  facie  justa  QS\,,  inique 
noceat  —  quod  cum  accidit,  alia  allegatione  opus  est,  adjuvandi 
rei  gratia,  qua  duplicatio  vocatur.  Et  si  rurus  ea  prima  facie 
justa  videtur,  sed  propter  aliquam  causam,  actori  inique  noceat, 
rursus  alia  allegatione  opus  est,  qua  actor  adjuvetur;  qua& 
dicitur  triplicatio.  (z) 

NOTE  (53).    See  p.  319. 

The  reason  of  the  fiction  of  color  is,  in  some  measure,  ex- 
plained in  Doct.  and  Stud.  271 ;  and  the  explanation,  as  far  as- 
it  goes,  is  conformable  with  the  account  given  in  the  text.  la 
this,  and  in  most  of  the  treatises,  indeed,  color  is  said  to  be 
necessary,  in  a  view  to  prevent  the  plea  from  amounting  to  the 
general  issue.  It  will,  however,  appear  in  a  subsequent  part 
of  this  work  (a)  that  this  is,  in  fact,  only  an  imperfect  way  of 
expressing  the  same  doctrine  that  is  laid  down  in  the  text. 

(a;)  Turneb.  in  notis  ad  Quinctil. 

(I/)  Juv.  Sat.  vii. 

(z)  Inst.,  lib.  iv,  tit.  xiv. 

(a)  See  pp.  461-2. 


NOTE  (54).  APPENDIX.  551 

It  should  also  be  observed  that  Mr.  Reeves  assigns  as  a 
motive,  with  the  ancient  pleaders,  in  giving  color,  and,  indeed, 
as  the  secret  origin  of  the  practice,  the  wish  to  interpose  delay, 
by  preventing  the  more  summary  decision  which  the  general 
issue  would  produce.  (5) 

NOTE  (54).     See  p.  323. 

This  important  rule,  "  that  every  pleading  is  taken  to  admit 
such  traversable  matters  alleged  on  the  other  side  as  it  does 
not  traverse,"  appears  not  to  have  existed  in  the  civil  law. 
"Non  utique  existimatur  confiteri  de  intentione,  adversarius 
quo  cum  agitur,  quia  exceptione  utitur,"  (c)  —  "  Non  ad  effec- 
tum  exceptionis  pertinet,  quod  reus  excipiens,  hoc  ipso  fateri 
videretur  de  intentione  actoris.  (d)  On  the  other  hand,  we 
find  it  established  in  the  practice  of  the  courts  of  Normandy. 
For  it  is  laid  down  in  the  Commentaires  de  Terrien :  Quand 
les  parties  precedent,  1'un  afferme  faicts;  —  si  la  partie  centre 
qui  les  faicts  son  qffermez,  n'en  donne  neance,  les  faicts  affermez, 
demeurent  pour  confessez.  (e)  And  it  may  be  observed  here, 
that  the  analogous  principle  by  which  a  demurrer  is  held  to 
admit  matters  of  fact,  also  prevailed  in  the  Norman  law. 
Thus  it  is  laid  down  in  the  same  work :  II  est  defendu  de  dire 
je  denie  vostre  faict,  et  neantmoins  je  le  defens;  qui  est  a 
dire  que  quand  prouve  seroit,  je  le  soustiens  impertinent.  Et 
se  faut  arrester  a  1'une  des  fins  (that  is,  the  party  must  make 
his  election  of  one  of  these  issues],  c'est  a  dire,  ou  a  le  nier  (au 
quel  cas  s'il  est  prouve,  encores  qu'il  soit  impertinent,  le  prou- 
vant  gaigne  sa  cause),  ou  a  le  defendre  et  soustenir  qu'il  est 
impertinent,  et  n'infere  la  conclusion  du  demandeur  (au  quel 
cas  le  faict  demeure  pour  cognu\  ou  a  soustenir  que  le  faict 
qu'on  afferme  au  contraire,  est  plus  pertinent.  Au  quel  cas 
aussi  les  faicts  demeurent  pour  cognus  d'une  part  et  d'autre ; 
et  s'assiet  le  jugement  de  droict  sur  la  pertinence  ou  imperti- 
nence des  dits  faicts.  (f) 

(6)  See  3  Reeves,  24. 

(c)  Dig.,  lib.  44,  tit.  1,  sec.  0. 

(d)  Voet.  ad  Pandectas. 

(e)  Commentaires  de  Terrien,  1654,  liv.  Ix,  ch.  zzvtt. 
(/)  Comment,  de  Terrien,  Ibid. 


552  APPENDIX.  NOTES  (55)-(57). 

NOTE  (55).     See  p.  333. 

It  may  be  observed  that  the  question  for  decision  by  the 
grand  assise  is  not  properly  an  issue'  for  it  is  not  in  the  form 
of  a  traverse  or  negative  on  one  side,  and  affirmative  on  the 
other,  but  of  an  alternative  proposition,  "  whether  the  tenant 
has  greater  right  to  hold,  etc.,  or  the  demandant  to  have," 
etc.  And  for  the  same  reason  the  tenant,  in  putting  himself 
upon  the  grand  assise,  cannot  strictly  be  said  to  tender  issue, 
though  the  two  proceedings  are  analogous.  Accordingly,  the 
term  issue  is  not  generally  applied  to  this  case,  but  the  word 
mise  is  substituted ;  and  the  tenant  who  pleads  in  this  man- 
ner is  not  said  to  tender  an  issue,  but  to  join  the  mise;  (g)  the 
word  mise  being,  apparently,  derived  from  mettre,  and  having 
allusion  to  the  words  "puts  himself  on  the  grand  assise,"  etc. 
The  truth  is  that  this  form  of  question  was  established  in 
practice  as  early  as  the  time  of  Glanville,  **.  e.,  before  the  doc- 
trine of  issues  was  well  founded,  (K)  and  is  a  relic  of  an  earlier 
system  than  that  to  which  the  ordinary  issues  belong.  Vide 
supra,)  note  (46). 

NOTE  (56).     See  p.  347. 

In  the  report  of  the  case  in  Carthew  it  seems  to  be  sup- 
posed that  duplicity  is,  in  general,  no  objection  to  pleas  in 
abatement;  but  this  is  not  law.  (i)  The  mistake  probably 
originated  in  a  misapprehension  of  what  is  said  by  Lord 
Coke ;  (&)  but  what  he  says  evidently  applies  not  to  duplicity 
in  its  proper  sense,  but  to  the  use  of  dilatory  pleas,  succes- 
sively in  their  proper  order,  which,  as  will  be  hereafter  seen,  (Z) 
the  rules  of  pleading  allow. 

NOTE  (57).    See  p.  356. 

This  rule  against  double  pleading  (peculiar  at  the  present 
day,  it  is  believed,  to  our  own  country)  is  not  referable  to  the 
sources  of  the  civil  or  canon  law,  in  both  of  which  the  defend- 
ed Finch.  Law,  898. 
(fc)  See  Qlan.,  lib.  2,  chs.  8, 11. 
(0  See  Bac.  Ab.,  Abatement  (P.). 
(*)  Co.  Lltt.  804  a. 
(I)  See  p.  178. 


NOTE  (57).  APPENDIX.  55g 

ant  was  allowed  to  use  as  many  exceptions  as  he  pleased,  (m) 
Nor  has  its  origin  been  hitherto  traced.  It  may  not,  there- 
fore, be  unacceptable  to  the  reader  to  be  informed  that  this 
rule,  to  a  certain  extent  at  least,  very  anciently  obtained 
among  the  pleaders  in  Normandy,  and  was  considered  as  a 
peculiarity  in  their  plan  of  allegation.  In  the  Commentaires 
de  Terrien  we  find  the  following  passage :  En  Normandie  1'en 
ne  plaide  qu'  &  une  fin,  etc.  (i.  e.,  a  single  issue}.  And  after- 
wards: De  la  regie  dessus  dite  qu'on  ne  plaide  qu'  a  une  fin, 
s'ensuit,  que  combien  que  de  disposition  de  Droit  (i.  e.,  of  the 
civil  law")  nullus  pluribus  defensionibus  uti  prohibeatur,  ton- 
tesfois  cette  regie  souffre  limitation  par  nostre  usage  et  pra- 
tique, en  ce  qu'  on  ne  pent  user  de  defense  de  fait  denie,  et  de 
fait  defendu,  (n)  etc.,  that  is,  a  party  cannot  at  once  plead  and 
demur  to  the  same  matter. 

After  the  proofs,  given  in  some  of  the  preceding  notes,  of 
the  derivation  of  so  much  of  our  judicial  system  from  that  of 
our  continental  neighbors,  the  reader  will  perhaps  have  no 
difficulty  in  adjusting  between  the  two  nations  the  priority 
of  claim  to  the  regulation  now  in  question. 

It  is  farther  observable  that  this  rule  seems  to  have  been 
unknown  in  England  (at  least  not  observed  in  practice)  up  to 
the  date  of  Bracton's  treatise,  for  it  is  not  mentioned  in  the 
work  of  Glanville;  and  during  the  whole  interval  between 
these  two  authors,  the  Placitorum  Abbreviatio  abounds  with 
instances  of  the  use  of  several  pleas  to  the  same  matter.  (0) 

So  far  with  respect  to  the  origin  of  this  rule.  With  respect 
to  its  principle  or  object,  it  was  that  of  avoiding  several  issues. 
Thus,  in  the  first  year  of  Ed.  II.,  the  court  interrupt  the 
pleader  with  this  remark:  Yous  dites  chose  que  veot  avoir 
deux  issues  —  tenez  vous  al  une.  (p)  So  in  the  same  year  a 
similar  admonition  occurs:  II  covient  que  vous  tenez  al  une, 
par  chescun  de  eux  prent  diverse  issue,  (q)  Again,  in  the 

(m)  Qul  excipit,  non  propterea  confitetur  agentis  intentionem,  cum  eidem  non  solum 
imam,  sed  et  plures  exceptiones  etiam  contrarias,  proponere  liceat;  quas,  si  legitimse  fuer- 
unt,  si  judex  non  admiserit  potest  appellari;  judex  vero  punitur.  Corv.  Jus.  Canon.,  lib.  3, 
tit.  82.  Pluribus  defensionibus  uti  pennittitur.  Dig.,  lib.  44,  tit.  1,  sec.  5.  Nemo  prohibe- 
tur  pluribus  exceptionibus  uti,  quamvis  diversse  sunt.  Ibid.,  sec.  8. 

(n)  Comment,  de  Terrien,  liv.  ix,  ch.  xxviL 

(o)  See  Plac.  Ab.,  8  Hertf.,  rot.  26;  9  Suff.,  rot.  22;  48  Line.,  rot.  7;  60  Buck.,  rot.  8;  KH 
Sussex,  rot.  22;  92  Line.,  rot.  14  Vide  supra,  note  (38). 

(p)  1  Ed.  2,  15. 

(q)  Ibid,  8. 


554  APPENDIX.  NOTE  (58). 

reign  of  Ed.  III.,  one  of  the  judges  asks :  Si  jeo  port  un  assise 
devers  vous,  et  vous  dites  que  vous  n'aves  rien  sinon  a  terme 
d'ans,  et  puts  dites  ouster  que  la  terre  est  auncien  demesne, 
averes  vous  cestes  deux  plees?  quasi  diceret  non:  et  la  cause 
est  pur  ceo  que  deux  issues  purroient  estre  pris  sur  les  plees.  (r) 

As  for  the  reason  why  several  issues  were  thus  avoided  by 
the  early  pleaders,  it  was  no  doubt  the  wish  to  abbreviate 
and  simplify  as  much  as  possible  the  process  of  tho  legal  con- 
tention. 

While  the  explanation  of  the  rule  appears  to  be  thus  simple, 
it  is  not  easy  to  account  for  the  fantastic  illustration  of  its 
meaning  given  by  Bracton,  as  cited  in  a  former  note,  (s)  In- 
deed, it  may  be  observed  that  the  reasons  offered  for  it  by 
late  writers,  though  less  quaint,  are  not  quite  satisfactory. 
Thus,  it  is  said  in  Bacon's  Abridgment:  (t)  "The  reasons 
why  duplicity  in  pleading  is  a  fault  are  that,  the  party  being 
effectually  barred  by  one  single  point,  it  is  unnecessary  and 
vexatious  to  put  him  upon  litigating  any  other;  and  though 
he  might  take  issue  on  any  one  point,  yet  must  he  be  at  a  loss 
which  the  material  point  is,  so  as  to  traverse  the  same  and 
thereby  put  an  end  to  the  cause ;  whereas,  the  party  pleading 
such  double  matter  must  be  presumed  conusant  of  his  own 
strength,  and  therefore  ought  to  put  his  defense  on  that 
single  point  which  will  put  an  end  to  it.  Besides,  the  jury 
ought  not  to  be  charged  with  a  multiplicity  of  things,  when 
finding  any  one  of  thorn  contrary  to  their  evidence  lays  them 
liable  to  the  severity  of  an  attaint."  Another  writer  gives  as 
the  reason  why  a  party  is  confined  to  one  matter  of  defense, 
"  that  the  twelve  men  are  commonly  rude  and  ignorant,  and 
so,  consequently,  not  proper  to  be  troubled  with  too  many 
things  at  once."  (u) 

NOTE  (58).     See  p.  357. 

On  this  point  of  practice,  viz.,  the  joinder  of  different  de- 
mands in  the  same  action,  it  may  be  worth  remark  that  the 
canon  law  differed  from  the  imperial  institutions. 

(r)  40  Ed.  3,  45. 

<«)  See  note  (38). 

<t)  Bac.  Ab.,  Pleas,  etc.  (K.),  1. 

<«t)  Smith,  Repub.  Ang.,  lib.  2,  ch.  18,  p.  57,  cited  in  System  of  Pleading,  p.  'HA&. 


NOTE  (59).  APPENDIX.  555 

Plures  actiones,  says  Yoet  (quoting  the  Digest),  uno  libello 
cumulari  nequeunt.  .  .  .  Sed  usu  hodierno  invaluit,  plures 
uno  libello  actiones  cumulari  posse,  ex  Juris  Canonici  disposi- 
tione,  quoties  ex  diversis  causis,  ad  diversa  tendentibus,  agi- 
tur.  .  .  .  Cavendum  tamen,  ne  tales  cumulentur  quae  sibi 
invicem  contrarise  sunt.  .  .  .  Non  etiam  cumulandae  plures 
actiones  ex  eadem  causa,  et  ad  idem  tendentes,  veluti  actio  ex 
testamento,  et  rei  vindicatio,  ad  consequendam  eandem  rem 
legaiam,  eo  quod  altera  intentata,  alteram  perimit.  Nee 
plures  actiones  contra  diversos,  ex  diversis  causis,  debitores, 
etc.  (a?) 

The  English  courts,  it  will  be  observed,  have  adopted  the 
same  rule  with  the  Canonists,  but  whether  by  derivation  from 
them  or  from  some  other  source  does  not  appear. 

NOTE  (59).     See  p.  357. 

Count  is  also  used  in  a  real  action  as  the  name  for  the  whole 
declaration.  It  is  from  the  French  conte  (narrative),  and  it 
is  worth  notice  that  in  the  law  of  Normandy  this  word  conte 
had  a  more  extensive  meaning,  and  one,  therefore,  more  con- 
formable to  its  popular  and  original  sense  of  narrative  than 
those  which  it  now  bears  in  the  English  law,  being  applied  to 
any  of  the  allegations  of  fact  in  the  cause,  at  whatever  part  of 
the  pleading  it  might  occur.  In  the  Commentaires  de  Terrien 
is  cited  an  ordinance,  under  date  A.  D.  1462  and  1497,  in  the 
following  terms:  La  Court  a  ordonne  et  ordonne  que  dorena- 
vant  apres  que  les  parties  auront  este  ouys  verbalement  en 
leurs  raisons  et  conclusions,  et  ecrit  en  propos,  responce,  rep- 
lique,  et  duplique  (es  quels  quatre  contes,  les  dites  parties  seront 
tenues  mettre  et  escrire  tous  leurs  faicts,  neances,  offres,  et 
raisons,  et  faire  production  de  toutes  leurs  escritures  quils 
seront  tenues  dater  et  produire)  les  dites  parties  pourront  outre 
la  duplique,  mettre  et  eslire  leurs  conclusions  en  deux  petis 
contes,  etc.  (y) 

The  observation  of  Craig  that  the  terms  of  art  in  the  English 
law  are  all  derived  from  the  French  tongue,  and  have  no  affin- 
ity with  the  Saxon,  has  been  already  cited,  (z)  And  perhaps 

(x)  Voet.  ad  Pandectas,  lib.  n,  tit.  xin,  sec.  14. 
(]/)  Comment,  de  Terrien,  liv.  9,  ch.  xxvii. 
(ft)  Vide  supra,  note  (30). 


556  APPENDIX.  NOTES  (60),  61. 

when  the  reader  considers  how  many  proofs  have  been  afforded 
in  the  preceding  notes  of  the  derivation  not  only  of  our  legal 
language  but  of  our  forensic  usages  from  the  same  source,  he 
will  be  inclined  to  accede  —  with  certain  qualifications  —  to 
another  still  broader  position  of  the  same  author :  Certum  est 
jus  omne,  quo  Angli  hodie  utuntur,  a  Normannis,  seu  pontius 
a  Gallis,  ad  eos  emanasse.  (a)  That  our  system  of  pleading, 
at  least,  was  borrowed  from  the  Normans,  with  some  early 
and  slight  admixture  of  the  principles  of  the  civil  and  canon 
law,  there  seems  the  strongest  reason  to  believe. 

NOTE  (60).    See  p.  375. 

Such  was  the  general  state  of  the  law  on  the  subject  of 
venue ;  but  many  nice  questions  arose  as  to  the  place  from 
which  the  venue  should  come  in  particular  cases.  This  ap- 
pears to  have  been  a  matter  in  some  measure  in  the  discretion 
of  the  court;  and  we  accordingly  find  the  judges  in  some 
cases  departing  from  the  ordinary  course  and  directing  the 
venue  to  come,  not  from  the  place  where  the  matter  in  issue 
arose,  but  where  the  action  was  laid,  or  to  come  from  more 
counties  than  one  or  from  different  places  in  the  same 
county.  (5)  In  one  case,  in  consequence  of  doubts  that  had 
risen  whence  the  venue  should  come  upon  a  plea  of  villenage, 
it  appears  that  the  judges  suspended  the  issuing  of  the  venire 
till  they  had  consulted  parliament  whether  the  venue  should 
be  of  the  county  where  the  villenage  was  alleged  or  where 
the  writ  was  brought.  (<?) 

NOTE  (61).    See  p.  376. 

Lord  Coke  says  that  by  the  common  law  four  of  the  hun- 
dred were  required  in  actions,  real,  mixed  and  personal,  (d) 
He  probably  by  this  expression  means  only  the  law  as  ante- 
rior to  the  statute  which  altered  the  number  in  personal  ac- 
tions to  two,  viz.,  27  Eliz.,  ch.  6 ;  for  it  seems  clear  that  by 
the  common  law  (if  by  that  phrase  be  understood  the  state  of 

(a)  Crag.  Jus.  Feud.,  lib.  i,  D.  7. 

(6)  Plac.  Ab.,  Suff.  67;  86  Bedf.,  rot.  7;  94  Northumb.,  rot. 4;  96  Bedf.,  rot  8;  8  Keevea, 
107-112. 

(c)  8  Reeves,  108. 
(<f)  Oo.  Litt.  157  a. 


(62).  APPENDIX.  557 

law  anterior  to  any  of  our  existing  statutes),  the  jury  was  to 
consist  wholly  of  persons  from  the  immediate  venue,  and 
neither  four  nor  any  other  number  of  mere  hundredors  would 
suffice.  Indeed  the  form  of  the  venire  facias  as  it  existed 
even  down  to  the  time  of  Elizabeth  and  later  is  alone  suffi- 
cient to  prove  this.  Prsecipimus,  etc.,  quod  venire  facias,  etc., 
12  liberos  et  legales  homines  de  vicineto  de  B.,  etc.  (e)  The 
law  with  its  usual  adherence  to  old  usages  retained  this  form 
of  direction  to  the  sheriff,  though  in  fact  his  duty  had  at  the 
time  of  that  statute  long  been  confined  to  summoning  some 
of  the  jurors  from  the  hundred  only  in  which  B.  was  situate, 
and  the  remainder  from  the  county  at  large;  but  the  form 
serves  to  show  the  nature  of  the  more  ancient  practice  upon 
which  it  had  been  originally  framed. 

The  same  point  is  still  more  distinctly  proved  by  the  still 
existing  rule,  that  a  hundred  is  not  a  sufficient  venue  to  lay  in 
the  pleading  (/")  —  a  rule  that  seems  quite  inconsistent  with 
the  supposition  that  a  summons  of  hundredors  only  was 
originally  sufficient. 

NOTE  (62).     See  p.  378, 

Lord  Coke  seems  to  hold  that  this  distinction  between  local 
and  transitory  matters,  and  the  maxim  by  which  it  is  ex- 
pressed, debitum,  et  contractus,  etc.,  sunt  nullius  loci,  prevailed 
at  the  common  law.  (g)  Yet  it  is  difficult  to  conceive  this  to 
have  been  the  case,  when  the  character  of  the  original  institu- 
tion of  trial  by  jury  is  considered,  because  the  practice  of  ob- 
serving the  true  venue,  in  transitory  as  well  as  local  matters, 
seems  necessarily  consequent  upon  the  nature  of  that  institu- 
tion, according  to  its  most  ancient  form,  that  is,  when  the 
jurors  consisted  of  persons  cognizant  of  the  fact  on  their  own 
knowledge.  (K)  Perhaps  the  expressions  of  Lord  Coke,  when 
fairly  construed,  do  not  mean  more  than  to  trace  the  prev- 
alence of  this  distinction  to  a  very  early  period,  and  are  not 
to  be  taken  as  declaring  the  original  state  of  the  law  on  this 
point. 

(<)  27  Eliz.,  ch.  6. 

(/)  Co.  Litt.  by  Harg.  125  a,  n.  1. 

(g)  1  Rep.  3  a:  Bulwer's  Case.    And  see  1  Saund.  74,  n.  & 

(A)  See  note  (43). 


558  APPENDIX.  NOTES  (63)-(65). 

It  is  to  be  observed  that  Lord  Chief  Baron  Gilbert  lays 
down  on  this  subject  propositions  strongly  confirmatory  of 
the  view  taken  in  this  work,  and  irreconcilable  with  the  sup- 
posed doctrine  of  Lord  Coke,  if  that  doctrine  be  understood 
to  imply  an  original  distinction  between  local  and  transitory 
matters.  "The  venire  was  to  bring  up  the  pares  of  the  place 
where  the  fact  was  laid  in  order  to  try  the  issue ;  and  origi- 
nally every  fact  was  laid  in  the  place  where  it  was  really  done ; 
and  therefore  the  written  contracts  bore  date  at  a  certain 
place,  etc."  (i) 

NOTE  (63).    See  p.  380. 

It  has  been  said  that  the  practice  of  changing  the  venue 
rests  on  the  equity  of  the  statute  6  Kic.  II.,  stat.  1,  ch.  2.  (k)  On 
examination,  however,  of  that  statute  this  doctrine  will  be 
found  to  be  attended  with  great  difficulties;  and  if  the  view 
taken  in  the  last  note  be  a  correct  one,  the  practice  of  changing 
the  venue  may  be  more  simply  and  satisfactorily  referred  to  the 
ancient  principle  of  the  common  law  requiring  the  jurors  in 
all  cases  to  be  summoned  from  the  true  neighborhood. 

NOTE  (64).     See  p.  383. 

So,  the  objection  of  an  impossible  or  inconsistent  date,  even 
where  the  time  is  necessarily  alleged,  will  in  many  cases  be 
aided,  after  verdict,  by  the  effect  of  the  verdict  itself.  (I)  And 
as  well  after  verdict  as  after  judgment  by  confession  nil  dicit, 
or  non  sum  informatus,  it  will,  in  many  cases,  be  cured  by 
the  statutes  of  jeofails  and  amendments,  (m)  16  and  17  Car. 
II.,  ch.  8,  sec.  1,  and  4  Ann,  ch.  16,  sec.  2;  by  which  it  is  pro- 
vided that  judgment  shall  not  be  stayed  or  reversed  for  mis- 
taking the  day,  month  or  year,  when  the  right  day,  month  or 
year  is  once  truly  and  rightly  alleged  in  the  record. 

NOTE  (65).     See  p.  387. 

Though  in  the  preceding  examples  the  judgment  was  ar- 
rested after  verdict  on  the  ground  of  the  omission  of  quality, 
quantity  or  value,  yet  it  must  be  observed  that  the  objection 

(f)  Qilb.  Hist.  C.  P.  84. 

(At)  Vide  1  Saund.  74,  n.  2;  Black.  Com.  1033. 

(1)  2  Saund.  171  c.    With  respeci  to  aider  by  verdict,  vide  gupra,  p.  271. 

COT)  As  to  the  operation  of  these  statutes,  vide  supra,  p.  272. 


NOTE  (65).  APPENDIX.  559 

is  now  rarely  perhaps  available  at  that  stage  of  the  cause.  For 
in  many  cases  the  fault  would  no  doubt  be  considered  as 
aided  by  the  effect  of  the  verdict  itself.  Thus,  if  the  jury 
find  a  certain  amount  of  debt  or  damage  to  be  due,  it  ap- 
pears to  supersede  any  farther  consideration  of  the  quality, 
quantity  or  value  of  those  goods  and  chattels  in  respect  of 
which  the  amount  of  the  claim  is  thus  liquidated.  And  even 
when  the  verdict  has  itself  no  healing  operation  of  this  kind, 
the  statutes  of  jeofails,  which,  after  verdict,  cure  all  defects 
of  mere  form,  would  probably  be  held,  in  many  instances,  to 
remove  the  objection.  The  courts  formerly,  indeed,  enter- 
tained another  view  on  this  subject;  holding  the  omission  of 
quality,  quantity  or  value  to  be  matter  not  of  form  but  of 
substance,  (n)  and  therefore  not  capable  of  being  cured  by 
the  statutes  of  jeofails  then  in  force;  but  the  more  liberal 
doctrines  of  the  modern  pleading,  or  the  wider  effect  of  the 
subsequent  statutes  of  jeofails,  seem  to  have  relaxed  this  se- 
verity. Accordingly,  it  has  been  the  tendency  of  recent  au- 
thorities to  consider  objections  of  this  kind  as  immaterial 
after  verdict.  Thus,  in  assumpsit,  the  declaration  stated  that 
in  consideration  that  the  plaintiff  had  sold  to  the  defendant  a 
certain  horse  of  the  plaintiff's,  at  and  for  a  certain  quantity  of 
oil,  to  be  delivered  within  a  certain  time,  which  had  elapsed 
before  the  commencement  of  the  suit,  the  defendant  prom- 
ised to  deliver  the  said  oil  accordingly ;  though  neither  value, 
quantity  nor  time  was  specified,  yet  the  court  held  that  the 
objections  thence  arising  could  not  prevail  after  verdict.  (0) 
However,  it  seems  that  there  are  some  instances  in  which  the 
fault  is  still  considered  as  matter  of  substance,  and  ground 
for  arresting  or  reversing  the  judgment  after  verdict;  as  in 
the  case  of  replevin  cited  in  the  text,  (p)  where  the  declara- 
tion did  not  set  forth  the  nature,  number  or  value  of  the  goods. 
When  an  omission  of  this  kind  is  considered  as  mere  form 
so  as  to  be  cured  by  the  statutes  of  jeofails,  it  will  be  so  cured, 
not  only  after  verdict,  but  also  after  judgment  by  confession, 
nil  dicit,  or  non  sum  informatus;  and  if  made  the  subject  of 
demurrer,  the  demurrer  must  be  special,  (g) 

(n)  5  Rep.  84  b. 

(o)  2  Bos.  &  Pul.  265. 

(p)  7  Taunt.  642. 

(g)  As  to  special  demurrer,  vide  supra,  pp.  263,  264 


560  APPENDIX.  NOTE  (66). 

NOTE  (66).     See  p.  389. 

Though  the  rule  prescribing  the  specification  of  quality, 
quantity  and  value  has  been  here  classed  as  tending  to  the 
certainty  of  the  issue,  the  author  is  aware  that,  according  to- 
some  authorities,  these  particulars  are  required  in  another 
view,  viz.,  the  more  certain  information  of  the  opposite  party 
of  the  nature  of  the  demand  against  him  in  order  to  enable 
him  to  plead  to  it  more  precisely.  But  though  this  object  may 
have  been  sometimes  contemplated  as  an  additional  ground 
for  enforcing  the  specification  of  quality,  quantity  and  value, 
the  author  conceives  that  particularity  on  these  points  was 
originally  and  mainly  required  in  reference  to  the  same  gen- 
eral design  which  forms  the  basis  of  all  the  rules  with  respect 
to  certainty,  viz.,  the  production  of  a  certain  issue'  and  that 
this  subject,  therefore,  occupies  its  right  place  in  the  treatise. 

That  to  produce  certainty  in  the  issue  is  the  general  design 
both  of  this  and  all  the  other  rules  that  enforce  certainty  in 
the  pleadings  may  not  only  be  inferred  from  the  reason  of  the- 
thing,  but  distinctly  proved  by  several  authorities.  Thus 
Bracton  lays  it  down :  Certa  debet  esse  intentio  et  narratio, 
et  certum  fundamentum,  et  certa  res  qum  deducitur  in  judi- 
cium.  (r)  So  in  treating  of  an  assise  of  novel  disseisin  of  com- 
mon of  pasture,  and  of  the  form  of  intentio  or  count,  he  says: 
Oportet  docere  de  qualitate  pasturge  utrum  sit  larga  vel  stricta, 
ut  certa  res  deducatur  in  judicium.  Item  de  quo  tenemento 
pertineat,  et  ad  quale  tenementum.  Et  eodem  modo  de  tern- 
pore,  genere,  numero,  et  modo,  (s)  etc.  And  the  same  doctrine 
is  laid  down  still  more  decisively  in  the  following  passage : 
Oportet  quod  petens  rem  designet  quam  petit,  videlicet  quali- 
tatem,  ut  sciatur  utrum  petatur  terra,  vel  redditus,  cum  perti- 
nentiis ;  —  item  guantitatem,  utrum  videlicet  sit  plus  vel  minus, 
quod  petitur.  Certain  enim  rem  oportet  deducere  in  judicium) 
ne  contingat  judicium  esse  delusorium  vel  obscurum  quia  de  re 
incertd  in  judicium;  deductd,  certa  fieri  non  poterit  sententia. 
.  .  .  Specificare  autem  poterit,  sic,  ut  si  dicat  —  Peto  versus 
talem  tot  maneria,  quandoque  cum  pertinentiis,  quandoque 
sine;  item  tot  feoda  militum  cum  pertinentiis;  item  tot  caru- 
catas  terras,  tot  virgatas,  tot  acras,  tot  selliones,  etc.  (£) 

(r)  Cited  Co.  Litt.  303  a. 
O)  Bract.  234  b. 
(0  Ibid.  431  a. 


NOTES  (67),  (68).  APPENDIX.  561 

Thus,  too,  it  is  laid  down  by  Lord  Coke,  that  in  pleading 
performance  of  the  condition  of  a  bond  the  party  "  ought  to 
plead,  in  certainty,  the  time  and  place  and  manner  of  the  per- 
formance, so  as  a  certain  issue  may  be  taken"  (it)  etc. 

NOTE  (6T).     See  p.  436. 

The  principle  of  the  rule  against  a  negative  pregnant  is  not 
clearly  or  satisfactorily  explained  in  any  of  the  treatises ;  and 
indeed,  very  little  is  said  in  them  upon  this  subject,  though 
the  fault  itself  is,  in  the  older  cases,  a  frequent  ground  of  ob- 
jection. That  the  author  has  here  suggested  the  true  prin- 
ciple is  confirmed,  he  thinks,  by  the  form  in  which  we  find 
this  kind  of  objection  taken  in  the  following  case  from  the 
Year-books.  In  an  action  for  negligently  keeping  a  fire,  by 
which  the  plaintiff's  houses  were  burnt,  the  defendant  pleaded 
that  the  plaintiff's  houses  were  not  burnt  by  the  defendant's 
negligence  in  keeping  his  fire;  and  it  was  objected  that  "  the 
traverse  was  not  good,  for  it  has  two  intendments  —  one,  that 
the  houses  were  not  burnt;  the  other,  that  they  were  burnt, 
but  not  by  negligent  keeping  of  the  fire ;  and  so  it  is  a  neg- 
ative pregnant"  (a?)  Thus,  too,  we  find  it  laid  down,  "There- 
fore the  law  refuseth  double  pleading  and  negative  pregnant, 
though  they  be  true,  because  they  do  inveigle,  and  not  settle 
the  judgment  upon  one  point"  (y)  So  it  is  said  in  another 
book :  "  A  negative  pregnant  is  when  two  matters  are  put  in 
issue  in  one  plea ;  and  this  makes  the  plea  to  be  naught,  be- 
cause the  plaintiff  cannot  tell  in  which  of  these  matters  to 
join  issue  with  the  defendant,  for  the  uncertainty  upon  which 
of  the  matters  the  plaintiff  doth  insist ;  and  so  it  is  not  safe 
for  the  plaintiff  to  proceed  upon  it."  (s) 

NOTE  (68).     See  p.  440. 

Of  this  distinction  —  that  non  estfactum  is  to  be  pleaded  by 
a  party,  but  not  by  a  stranger, —  the  reason  is  thus  given  by 
the  court,  in  the  reign  of  Hen.  IY. :  Le  cause  est,  pur  ceo  que 
home  poit  bien  scavoir  quel  fait  il  m.  fait  —  mais  estranger  a 

(w)  Cro.  Jac.  360. 

(*)  28  Hen.  6,  7. 

(?)  Hob.  295. 

(z)  Styles'  Pract.  Keg.,  tit.  Negative  Pregnant. 


562  APPENDIX.  NOTES  (69),  (70). 

un  fait,  ne  poit  pas  scavoir  quel  fait  cesty  que  estate  il  ad, 
fesoit,  (a)  etc. 

It  is  to  be  observed  that,  with  respect  to  real  or  personal 
representatives,  they  are  in  the  same  situation  with  parties, 
and  must  plead  non  estfactum.  (b)  With  respect  to  privies  in 
estate,  they  are  strangers  within  the  rule  in  question,  (c) 

NOTE  (69).     See  p.  444. 

In  treating  of  the  observance  of  established  forms  of  state- 
ment by  the  ancient  pleaders,  Mr.  Keeves  remarks.  "It  was 
impossible  that  a  set  form  of  expression  could  be  designed  for 
every  matter  that  might  become  the  subject  of  a  declaration 
or  plea.  But  many  modes  and  circumstances  of  property 
recurred  so  often  in  judicial  inquiries  as  to  obtain  apt  and 
stated  forms  of  description  and  allegation,  which  were  estab- 
lished by  long  usage;  the  experience  of  them  having  shown 
them  preferable  to  all  others.  These,  therefore,  were  ad- 
hered to  by  pleaders,  and  the  nicety  with  which  they  were 
conceived  is  a  strong  mark  of  the  refinement  and  curiosity 
with  which  this  part  of  our  law  was  cultivated."  (d) 

NOTE  (70).     See  p.  445. 

The  plea  of  coverture,  however,  concludes  to  the  writ,  i.  e., 
with  a  prayer,  quod  breve  cassetur,  and  not  with  responderi  non 
debet.  (e)  So,  in  an  action  against  a  man  as  executor,  if  he 
pleads  that  he  is  administrator,  this  plea  must  conclude  with 
breve  cassetur  and  not  with  responderi  non  debet.  (/")  Indeed 
it  may  be  remarked  generally,  that  all  such  matters  as  not 
only  relate  to  the  person  of  the  plaintiff  or  defendant,  but  also 
tend  to  show  that  the  form  of  the  writ  is  erroneous,  are  apt 
to  be  considered  as  pleas  in  abatement  to  the  writ  rather  than 
the  person,  and  therefore  conclude  not  with  responderi  non 
debet  but  breve  cassetur.  It  is  only  such  matters  as  alienage, 
excommunication,  etc.,  which  relate  to  the  person  exclusively. 

(a)  2  Hen.  4,  20. 
(6)  1  Lutw.  662. 

(c)  2  Hen.  4,  20.    8ed  vide  2  Taunt.  a«i. 

(d)  3  Reeves,  463,  404. 

(e)  1  Chitty,  450. 
(/)  1  Ld.  Kayiu.  83. 


NOTES  (71),  (72).  APPENDIX.  563 

and  show  that  no  form  of  writ  would  be  correctly  applied,  that 
•will  be  found  to  have  the  former  conclusion.  In  Comyns'  Di- 
gest (g]  very  numerous  instances  of  pleas  in  abatement  to  the 
person  are  enumerated,  but  on  examining  them  they  appear, 
for  the  most  part,  to  relate  both  to  the  person  and  the  form 
of  the  writ;  and  in  all  such  cases  we  shall  find,  in  conformity 
with  the  remark  above  made,  that  though  classed  by  Comyns 
among  pleas  in  abatement  to  the  person,  they  conclude  with 
Ireve  cassetur  and  not  responderi  non  debet. 

NOTE  (71).     See  p.  449. 

Some  of  these  formal  commencements  and  conclusions  are 
of  great  antiquity.  Thus,  in  Britton  (the  first  law  treatise  in 
French,  supposed  to  be  written  in  the  reign  of  Ed.  I.),  (A) 
we  find  this  form  of  commencement:  lepleintife  nepurra  rien 
conquere,  (i)  which  is  nearly  the  same  with  actio  non.  "We 
also  find  the  following:  V  escript  ne  luy  doit  grever.  (K)  This 
is  the  onerari  non.  So  the  prayer  of  judgment,  at  the  con- 
clusion of  pleadings,  is  mentioned  in  Bracton.  (T) 

A  somewhat  curious  circumstance,  and  one  that  seems  to 
deserve  remark  in  this  place,  is  that  a  form  exactly  parallel 
to  that  last  cited  from  Britton  is  to  be  found  in  the  still  ex- 
tant pleadings  of  the  Lombards.  Thus:  Ipsa  chartula  non 
mihi  nocet,  quia  eram  Longobarda  —  non  potui  facere  sine 
parentibus.  (m)  And  again :  Si  appellator  dixerit,  Ecce  charta 
quam  pater  tuus  mihi  fecit, —  et  appellatus  dixerit,  Ilia  charta 
nihil  mihi  impedit,  quia  pater  meus  fecit  earn,  per  virtutem 
(i.  e.t  vim)  —  approbet,  (n)  etc. 

NOTE  (72).    See  p.  450. 

Though  it  be  said  that  it  is  sufficient  to  pray  judgment  gen- 
erally (except  in  the  case  of  pleas  in  abatement),  and  that 
upon  such  general  prayer  the  court  will,  ex  officio,  award  the 
proper  legal  consequence,  yet  it  may  be  doubted  whether  this 

(g)  Com.  Dig.,  Abatement  (E.),  (J1.). 

(A)  2  Reeves,  280. 

ft)  Brit.,  ch.  96. 

(fc)  Ibid.,  ch.  28. 

(J)  Bract.  57  b. 

(m)  Leges  Liutpr.,  lib.  VI,  74. 

(»)  Leges  Ottonis  II.  August!,  ch.  5. 


564  APPENDIX.  NOTES  (73),  (74). 

h 

proposition  does  not  require  considerable  qualification.  The 
cases  do  not  satisfactorily  prove  that  a  simple  prayer  of  judg- 
ment, without  more,  would  in  every  case  be  held  good,  sup- 
posing the  want  of  form  to  be  specifically  objected  upon 
demurrer,  (o) 

NOTE  (73).     See  p.  451.' 

It  is  laid  down  in  several  books  that  if  a  plea  which  con- 
tains matter  in  bar  conclude  in  abatement,  it  is  a  plea  in  bar, 
notwithstanding  the  conclusion,  (p]  If  this  proposition  be 
meant  to  include  the  case  where  there  is  not  only  a  conclu- 
sion, but  a  commencement  in  abatement,  it  is  opposed  to  the 
decision  in  6  Taunt.  587,  as  cited  in  the  text.  And,  even  if  it 
be  intended  to  apply  only  to  the  case  where  there  is  a  conclu- 
sion in  abatement,  but  no  commencement  either  way,  the 
soundness  of  the  doctrine  seems  doubtful.  For  it  is  said  to 
be  founded  on  this  principle :  that  where  there  is  no  cause  of 
action  the  plaintiff  can  have  no  writ;(^)  and  the  opinions  of 
Prisot,  J.,  and  Littleton,  J.,  are  cited  to  this  point,  from  the 
Year-books.  It  is  observable,  however,  that  this  principle 
would  only  tend  to  show  that  such  a  plea  would  be  a  good  plea 
in  abatement,  and  does  not  explain  why  it  should  be  consid- 
ered as  a  plea  in  bar.  And  though  Prisot,  J.,  in  37  Hen.  YL, 
24  a,  holds  that  it  would  be  a  plea  in  bar,  the  opinion  of  Lit- 
tleton, J.,  36  Hen.  YL,  18,  when  examined,  does  not  go  to 
that  extent.  He  merely  says  it  would  be  a  good  pita.  There 
seems  reason,  therefore,  to  doubt  whether  such  plea  should 
not  be  taken  (in  conformity  with  the  general  principle,  conclu- 
sio  facit  placituiri)  as  a  plea  in  abatement,  (r)  As  to  the  case 
where  the  commencement  is  one  way  and  the  conclusion  an- 
other, as  where  the  plea  commences  in  bar  and  concludes  in 
abatement,  or  commences  in  abatement  and  concludes  in  bar, 
see  2  Saund.  209  d,  n.  1. 

NOTE  (74).     See  p.  453. 

Lord  Coke  defines  it  thus :  "  A  departure  in  pleading  is 
said  to  be  when  the  second  plea  containeth  matter  not  pur- 

(o)  See  the  cases,  1  Lev.  822;  2  Lev.  19;  1  Str.  523. 
(p)  2  Saund.  209  c,  n.  1;  1  Chitty,  446;  1  Arch.  304, 
(q)  1  Chitty,  446;  2  Saund.  209  c,  n.  1. 
(r)  See  10  Mod.  112;  6  Taunt.  595. 


NOTES  (75)-(77).  .  APPENDIX.  565 

suant  to  his  former,  and  which  fortifieth  not  the  same.  And 
therefore  it  is  called  decessus,  because  he  departeth  from  his 
former  plea."  (s) 

Mr.  Sergeant  Williams  gives  the  following  definition:  "  A 
departure  in  pleading  is  said  to  be  when  a  man  quits  or  departs 
from  one  defense  which  he  has  first  made  and  has  recourse  to 
another ;  it  is  when  his  second  plea  does  not  contain  matter 
pursuant  to  his  first  plea,  and  which  does  not  support  and 
fortify  it."  (f) 

NOTE  (75).     See  p.  467. 

This  form  of  commencing  the  declaration  —  ceo  vous  mon- 
stre  —  occurs  in  the  year-books  passim  and  in  the  Novse  Nar- 
rationes,  which  is  of  the  time  of  Ed.  III.,  and  contains  the  most 
ancient  precedents  in  the  Law  French,  (u)  The  same  com 
mencement,latinized,  occurs  in  Bracton :  HOG  ostendit  vobis.  (x) 
The  form  of  an  earlier  period,  as  given  by  Glanville,  in  Latin, 
is  peto,  (y)  etc. 

NOTE  (76).     See  p.  573. 

It  is  said  in  Fleta  that  the  rule  requiring  the  production  of 
suit  in  the  declaration  is  the  subject  of  one  of  the  provisions 
of  Magna  Charta.  Ad  hoc  facit  hoc  Statutum  in  Magna  Charta. 
Nullus  liber  homo  ponatur  ad  legem,  nee  ad  juramentum,  per 
simplicein  loquelan,  sine  testibus  fidelibus  ad  hoc  ductis.  (s) 


NOTE  (77).    See  p.  573. 

The  practice  of  finding  pledges  to  prosecute  appears  to  have 
been  an  effective  one,  at  least  as  late  as  the  time  of  Bracton. 
"  Si  quis,"  says  that  author,  "  plegios  inveniet  de  prosequendo, 
et  non  fuerit  prosecutus,  omnes  erunt  in  inisericordia,  tarn 
plegi,  quam  principales." 

(•)  Co.  Litt.  804  a. 

(t)  2  Saund.  84,  n.  11. 

(u)  See,  also,  Britton,  59. 

(x)  Bract.  296  b,  372  b. 

(y)  Glan.,  lib.  2,  cb,  1;  8  lib.  4,  oh.  & 

(z)  Fleta,  137. 


566  APPENDIX.  NOTES  (78),  (79). 

(78).     See  p.  178. 


The  order  of  pleading  has  generally  been  given  in  a  less  de- 
tailed form  than  that  contained  in  the  text. 
According  to  Mr.  Tidd  it  is  as  follows: 

1.  To  the  jurisdiction  of  the  court. 

2.  To  the  person.  -!  L  °f  ^  Plaintiff« 

(  2.  Of  the  defendant. 

3.  To  the  count. 

4.  To  the  writ.  |  L  To  the  form  of  the  writ' 

(  2.  To  the  action  of  the  writ. 

5.  To  the  action  itself;  in  bar  thereof,  (a) 

And  it  is  given  in  nearly  the  same  manner  in  the  Preface  to 
the  Doctrina  Placitandi,  and  in  Bacon's  Abridgment.  (5) 

Lord  Holt  states  it  still  more  generally:  "  The  law  has  pre- 
scribed and  settled  the  order  of  pleading  which  the  party  is 
to  pursue,  viz.:  to  the  jurisdiction  of  the  court;  to  the  disa- 
ability  of  the  person  ;  to  the  count  ;  to  the  writ  ;  and  lastly,  to 
the  action."  (c) 

This  is  almost  in  the  same  terms  with  Lord  Coke  :  "  First, 
in  good  order  of  pleading  a  man  must  plead  to  the  jurisdic- 
tion of  the  court.  2.  To  the  person;  and  therein,  first  to  the 
person  of  the  plaintiff,  and  then  to  the  person  of  the  defend- 
ant. 3.  To  the  count.  4.  To  the  writ.  5.  To  the  action,  etc. 
Which  order  and  form  of  pleading  you  shall  read  in  the 
ancient  authors,  agreeable  to  the  law  at  this  day;  and  if  the  de- 
fendanj;  misorder  any  of  these,  he  loses  the  benefit  of  the 
former."  (d) 

NOTE  (79).    See  p.  470. 

Defendere  was  the  word  most  often  used  in  ancient  times  to 
express  denial.  Thus  we  find  it  employed  to  deny  the  genu- 
ineness of  a  deed:  Petrus  venit  et  defendit  cartam,  quod  nun- 
quam  facta  fuit  per  Petrum  de  Goldington,  etc.  (e) 

(a)  1  Tidd.  565. 

(6)  Bac.  Ab.,  Pleas,  etc.  (A.). 

(c)  Lord  Ray.  970. 

(d)  Co.  Litt.  303  a. 

(e)  Plac.  Ab.,  27;  Leic.,  rot.  11  (temp.  Johan.). 


NOTES  (80)-(82).  APPENDIX.  567 

NOTE  (80).     See  p.  470. 

"Defense,  in  its  true  legal  sense,  signifies,  not  a  justifica- 
tion, protection  or  guard,  which  is  now  its  popular  signifi- 
cation, but  merely  an  opposing,  or  denial  (from  the  French 
word  defender}^  of  the  truth  or  validity  of  the  complaint.  It 
is  the  contestatio  litis  of  the  civilians."  (f)  As  to  the  latter 
proposition,  vide  supra,  note  (42),  where  it  is  shown  that  the 
contestatio  litis  has  a  different  meaning  in  the  civil  law.1 

NOTE  (81).     See  p.  471. 

With  whatever  object  introduced,  the  use  of  the  words  d&- 
fenditjus  suum,  and  defendit  vim  et  injuriam,  in  the  plea,  is 
coeval  with  the  most  ancient  records;  for  we  find  them  in  the 
earliest  specimens  from  the  Placitorum  Abbreviatio,  in  the 
beginning  of  the  reign  of  Etc.  I.:  Kogerus  de  Hineton  de- 
fendit jus  suum  et  dicit.  (g)  Et  Yvo  venit  et  defendit  jus 
suum  et  dicit.  (A)  Et  Eobertus  venit  et  defendit  vim  et  in- 
juriam  et  dicit.  (i) 

NOTE  (82).    See  p.  472. 

The  rule  by  which  a  plea  in  abatement  is  required  to  give 
the  plaintiff  a  better  writ  is  very  ancient,  being  laid  down  by 
Bracton  in  the  reign  of  Hen.  III.  Thus  he  says,  in  speaking 
of  the  plea  of  non  tenure:  Notandum,  quod  cum  tenens  semel 
talem  exceptionem  proposuerit,  ulterius  consimilem  proponere 
non  possit,  ne  diutius  protrahatur  negotium;  et  tenens  ad  hoc 
poterit  coarctari,  quod  ostendat  quis  in  possessione  extiterit  — 
ne  iterum  cadat  breve  per  mendatium ;  et,  etiam  ad  omnes 
exceptiones  quse  faciunt  ad  breve  prosternendum.  (k)  So  Brit- 
ton  says, in  speaking  of  the  same  plea:  Si  le  tenant  die  que  il 
ne  tient  mye  1'entier,  adonques  covient  que  il  die  qui  tient  le 
remenaunt.  Car  nous  volons  eins  ceo  que  brefs  se  abatent  par 
vice  et  par  errour,  que  les  tenaunts  informent  les  pleintifes 
coment  ils  purchaserount  bons  brefes.  (Z) 

(/)  8  Bl.  Com.  298. 

(g)  Plac.  Ab.  1;  Dorset.,  rot.  5  (temp.  8  Rlc.  1). 

(A)  Plac.  Ab.  7;  Cantabr.,  rot.  26  (temp.  10  Ric.  1\ 

(i)  Plac.  Ab.  90;  Ebor.,  rot  23  (temp.  15  Johan.). 

(fc)  Bract.  431  b. 

(Z)  Brit.,  ch.  84. 

1  See  Houghton  v.  Townshend,  8  How.  Pr.  41L 


568  APPENDIX.  NOTES  (83),  (84). 

NOTE  (83).     See  p.  473. 

This  principle  relative  to  dilatory  pleas,  viz.,  that  they 
should  be  pleaded  at  a  preliminary  stage  of  the  suit,  appears 
to  have  been  borrowed  from  the  canon  or  civil  law :  Dilatoriaa 
exceptiones,  si  declinatoriae  judicii,  db  initio  et  in  litis  ingressu, 
proponi  debent;  alioquin,  omissae,  non  repetuntur;  ut  neque 
quaa  contra  judicem,  vel  ejus  incompetentiam  proponuntur, — 
quae  defensionem  praacedere  debent,  etc.  (ra)  Si  quis  advoca- 
tus,  inter  exordia  litis  praetermissam  dilatoriam  prcescriptionem 
(i.  e.,  exceptionem),  postea  voluerit  exercere,  et  a.b  hujusmodi 
opitulatione  submotus,  nihilominus  perseveret,  atque  prc&pos- 
teros  defensioni  institerit,  unius  libraa  auri  condemnatione, 
multetur.  (ri) 

NOTE  (84).     See  p.  473. 

The  rule  requiring  that  each  pleading  should  be  supported 
by  proof  appears  to  have  extended  equally  to  the  declaration 
and  to  the  subsequent  pleadings;  for  the  secia  was  considered 
as  a  species  of  proof  offered  in  support  of  the  declaration. 

To  establish  in  a  satisfactory  manner  the  existence  of  this 
rule,  several  authorities  shall  here  be  cited.  First,  in  speaking 
of  the  intentio,  or  count,  in  a  writ  of  right,  Bracton  says :  Item, 
non  sufficit  quod  petens  intentionem  suam  sic  proponat  et 
fundet,  nisi  sic  fundatam  probaverit,  et  dicatur  in  fine  inten- 
tiones  fundatae,  "et  quad  tale  sit  jus  suum  offert,"  etc.  (6) 
Again,  with  respect  to  exceptiones^  or  pleas,  generally,  he  lays 
it  down:  Sicut  ille  qui  dicit,  tenetur  probare  actionem, —  ita 
ille  qui  excipit,  exceptionem, —  sive  affirmando,  sive  negando, 
dum  tamen  negativa  habeat  in  se,  affirmativam  implicitam.  (p) 
So  he  says  that  where  a  tenant  has  occasion  to  plead  the  grant 
of  the  demandant,  ostendere  debet  tenens  chartam  adprobandam 
exceptionem  suam,  quod  si  non  fecerit,  exceptio  sua  nulla,  et 
amittat  sicut  indefensus.  Si  autem  chartam  forte  exhibere 
non  possit,  qui  ilia  ad  manum  non  habuerit,  de  necessitate 
erit  ad  patriam  recurrendum.  (5)  And  of  exceptiones  in  gen- 
Cm)  Corv.  Jus.  Canon.,  lib.  8,  tit,  33. 

(n)  Cod.,  lib.  8,  tit  86,  sec.  9. 

(o)  Bract.  373  b. 

(p)  Ibid.  307  b, 

(q)  Ibid.  84  a. 


NOTE  (84).  APPENDIX.  569 

eralhesays:  Sicut  necesse  est  actionem  proponere,  et  fun- 
dare,  Qlprobare,  ut  prima  facie  justa  videatur, —  ita  oportebit 
exceptionem.  (r)  The  reader  may  also  be  referred  to  the 
Placitorura  Abbreviatio,  passim,  where  the  pleadings  are 
constantly  accompanied  with  an  offer  of  some  method  of 
proof.  The  latter  work  contains  in  particular  the  following 
entries,  which  afford  strong  confirmation  of  the  same  principle : 

Isabella  de  B.  petit  versus  K.  de  B.,  dimidium,  etc.,  ut  jus 
suum  et  hereditatem.  Et  ipse  venit  et  defendit  jus  suum.  Et 
ipsa  nullam  sectam  adduxit.  Eat  sine  die.  (s) 

Gilbertus  de  Beivill  petit  versus  Willielmum  de  Beivill  duas 
virgatas  teme  cum  pertinentiis  in  Gunetorp,  quae  eum  contin- 
gunt  de  socagio  quod  fuit  patris  eorum,  in  eadem  villa.  Wil- 
lielmus  defendit  quod  socagium  illud  nunquam  partitum  fuit, 
neo  debet  partiri.  Et  hoc  offert  defendere,  etc.  Quia  Gil- 
fiertus  nullam  probationers  produxit,  consideratum  est  quod 
Willielmus  eat  inde  sine  die,  et  quietus,  (t) 

In  an  action  of  assise,  of  novel  disseisin,  we  have  the  follow- 
ing entry: 

Assisa  venit  recognitura  si  Oliverus  filius  Ranulfi  Haki,  et 
Simon  Medicus,  disseisiverunt  Willielmum  filium  Simonis,  et 
Sibillam  uxorem  suam,  injuste  et  sine  judicio,  de  libero  tene- 
mento  suo  in  Cliftun  infra  assisam.  Simon  Medicus  dicit,  quod 
ipse  disrationavit  illud  tenementum  versus  Oliverum,  in  curia 
Domini  Regis,  per  concordiam  inde  inter  eos  factum.  Et  inde 
protulil  cirographum  factum  inter  eos  inde.  Et  Oliverus 
venit,  et  idem  testatur;  et  dicit  quod  disrationavit  terram 
illam  per  assisam  mortis  antecessoris,  versus  matrem  suam  et 
fratrem  suum,  et  ipsam  Sibillam  sororem  suam,  post  obitum 
patris  sui ;  in  qua  terra  ipsi  injuste  se  tenuerunt.  Et  inde 
producit  milites  de  comitatu,  qui  eidem  assisce  capiendce  infer- 
fuerunt,  et  hi  idem  testantur.  Willielmus  et  Sibilla  dicunt 
quod  postquam  inde  Oliverus  disrationavit  illam  terram,  dedit 
eis  terram  illara,  et  homagium  inde  cepit.  Et  inde  ponunt  so 
super  visinetum.  (u) 

The  following  is  an  entry  in  an  assise  of  mortancestor : 

Assisa  venit  recognitura  si  "Willielmus  pater  Jurdani  saisitus 

(r)  Ibid.  400  a.    See,  also,  215  b. 

(*)  Plac.  Ab.  62;  Staff.,  rot.  7  (temp.  10  Johan.). 

(t)  Plac.  Ab.,  temp.  Johan. 

(w)  Plac.  Ab.  81;  Bed.,  rot.  4. 


570  APPENDIX.  NOTE  (85). 

fuit  in  dominico  suo  ut  de  feodo,  de  duabus  carucatis  terras 
cum  pertinentiis  in  Tadestorn.  die  qua  obiit;  et  si  obiit  post 
primam  coronationera  Henrici  Regis,  patris  Domini  Regis;  et 
si  praefatus  Jurdanus propinquior  hseres  ejus  sit;  quam  terram 
Thomas  frater  Willielmi  de  Mare  tenet.  Et  prsedictus  Thomas 
venit  et  dixit  quod  assisa  inde  fieri  non  debet,  quia  ipse  Jur- 
danus et  frater  ejus  primogenitus  implacitaverunt  ipsum  Tho- 
mam  de  ipsa  terra,  per  breve  de  recto,  ita  quod  per  placitum 
illud,  quaedam  particula  de  terra  ilia,  eis  remansit;  et  postea 
ceperunt  pro  eadem  terra  duas  marcas  argenti  et  unum  cha- 
zurum.  Et  hoc  offert  probare  adversus  eum,  prout  Curia  con- 
sideraverit.  Sed  nullam  produxit  prdbationem.  Et  Jurdanus 
venit  et  defendit  quod  ipse  nullum  fratrem  primogenitum 
legitime  natum  habuit.  Et  quod  ipse  nunquam  in  curia  ulla, 
quietam  clamavit  terram  illam,  nee  inde  duas  marcas  vel  pe- 
cuniam  aliquam  inde  cepit.  Et  hoc  offert  defendere  perquendam 
liberum  hominum  suum.  Et  Thomas  nihil  quam  defensionem 
illam  dixit  vel  obtulit,  nee  sectam  quod  ipse  Jurdanus  primo- 
genitum fratrem  hdbuit,  produxit,  nee  curiam  aliquam  in  qua 
placitum  esset  inter  eos,  nee  quando  finis  factus  esset  inter  eos. 
Consideratuni  est  quod  ipse  Jurdanus  habet  inde  saisinam 
suam.  (a?) 

These  authorities,  to  which  many  others  of  the  same  class 
might  easily  be  added,  are  sufficient  to  prove  that  a  tender  of 
evidence  was,  before  and  at  the  time  when  Bracton  wrote, 
considered  as  a  necessary  ingredient  in  all  pleadings  of  the 
affirmative  kind.  Soon  after  that  period,  however,  the  pro- 
cess of  pleading  began  to  be  conducted  with  a  more  distinct 
and  single  view  to  the  development  of  the  particular  question 
in  controversy  or  production  of  issue ;  and  when  so  conducted, 
the  offer  of  evidence  in  support  of  any  allegation  would  nat- 
urally be  considered  as  premature  till  it  were  ascertained  that 
such  matter  came  into  dispute.  The  rule  in  question  appears, 
therefore,  under  the  influence  of  this  cause  to  have  suffered  a 
silent  abrogation ;  yet  vestiges  of  it  to  this  day  remain  in  the 
production  of  suit  and  in  the  formal  verification. 

NOTE  (85).    See  p.  474. 

Thus  Bracton  lays  it  down  (in  a  passage  cited  in  the  last 
note) :  Si  autem  chartam  forte  exhibere  non  possit,  quia  illam 

Co)  Flao.  Ab.,  20  Hertf.  temp.  Ric.  1. 


NOTES  (86),  (87).  APPENDIX.  571 

ad  manum  non  habuerit,  de  necessitate  erit  ad  patriam  recur- 
rendum.  (y)  Again,  in  treating  of  the  exception  that  the  de- 
mandant was  a  villein,  he  says :  Oportet  quod  tenens  probet 
exeeptionem  per  parentes,  quos  statim  habeat  ad  manum,  si 
possit,  etc.  But  if  the  case  was  that  no  parentes  could  be  pro- 
duced on  either  side,  then  recourse  was  to  be  had  to  &jurata. 
Probat  enim  tenens  exeeptionem  per  juratam;  in  quam  de 
necessitate  consentire  oportet,  propter  defectum  alterius  proba- 
tionis;  quia  si  nom  habeat  parentes,  de  necessitate  recurritur 
ad  juratam  —  alioquin,  nulla  erit  exceptio,  quasi  deficiente  pro- 
batione.  Eodem  modo  dici  poterit  de  replicatione  querentis.  (z) 
Again,  this  author  observes:  Probari  poterit  exceptio  raultis 
modis,  turn  per  vocem  mortuam,  sicut  per  instrumenta,  turn 
per  vivam,  sicut  per  patriam  et  inquisitiones,  etc.  (a)  And  in 
another  place  he  speaks  of  probatio  per  instrumenta  —  quae 
quidem  si  non  fuermt  recognita,  fides  eorum  multipliciter 
yrobari  poterit,  vel  per  collationem  signorum,  vel  per  testes, 
vel  -per  patriam,  et  aliis  multis  modis,  &c.  (5) 

NOTE  (86).     See  p.  474.  , 

Prest,  etc.,  was  the  constant  form  in  the  viva  voce  pleading, 
of  offering  to  prove  by  jury,  as  appears  in  almost  every  page 
of  the  year-books. 

Sometimes  the  prest,  or  prest,  etc.,  is  more  fully  given,  thus  — 
prest  cFaverrer;  that  is,  ready  to  prove,  or  to  verify. 

NOTE  (87).    See  p.  477. 

The  following  examples,  which,  independently  of  the  view 
in  which  they  are  adduced,  are  curious  and  deserve  attention, 
will  illustrate  the  original  meaning  and  object  of  the  profert ; 
and,  as  the  author  conceives,  fully  support  him  in  the  new 
view  he  has  ventured  to  take  on  this  subject. 

In  the  first  of  them  it  will  be  observed  the  plaintiff  offers 
proofs  both  by  deeds  and  by  the  Eoll  of  Winton,  and  the  de- 
fendant also  refers  to  deeds  in  support  of  his  plea. 

(y)  Bract.  34  a. 

(a)  Ibid.  216  a. 

(a)  Ibid.  400  b. 

(6)  Ibid.  305  a.  Et  vide  889  b,  290 a. 


572  APPENDIX.  NOTE  (87). 

Abbas  Sampson  queritur  quod  Osbertus  de  "Weckesham, 
miles  episcopi  Eliensis,  injuste  levavit  furcas,  et  suspendiam 
fecit,  in  manerio  de  Hecham  infra  libertatem  Scti  Edmundi ; 
et  contra  libertatem  quam  habuit  beatus  Edmundus  a  tern- 
pore  Regis  Edwardi,  et  ex  ejusdem  Regis  dono.  Et  inde 
protulit  cartas  diversorum  Regum,  etc.  Et  praterea  ponit  se 
inde  super  Rotulum  Winton,  etc.  Osbertus  venit  et  trahit 
inde  Episcopum  Eliensem  ad  warrentum.  Episcopus  venit  et 
warrantizat  illud  suspendium  quod  et  de  jure  factum  fuit,  ut 
dicit,  quia  libertatem  habuit  et  babet  Sancta  Ethildreda  a 
tern  pore  Edgari  Regis,  qui  universas  libertates  dedit  ecclesiae 
Sancta3  Ethildredae,  cum  suspendii  libertate,  etc.  Protulit 
etiam  cartam  et  confirmationem  Regis  Edwardi,  qui  confir- 
mavit  libertates  omnes  ita  datas  Sanctae  Ethildredae  tarn  in 
manerio  de  Hecham,  cujus  membrum  est  "Weckesham,  et 
impertinentiis  omnibus,  quam  in  aliis  maneriis,  sine  omne 
exceptione,  etc.,  sicut  Rex  Edgarus  eis  concesserat.  Protulit 
etiam  cartas  Regum  "Willielmi  Conquestoris,  Henrici  avi,  et 
aliorum,  etc.  (c) 

In  the  next  example  the  plaintiff  offers  a  deed  with  the  sub- 
scribing witnesses,  or  the  grand  assise,  as  alternative  modes  of 
proof: 

Johannes  de  Crioill,  et  Johanna  uxor  ejus,  petunt  versus 
Petrum  de  Goldington,  terram  de  "Winchinton  tenendam  et 
habendam,  sicut  illam  qua3  data  fuit  eidem  Johanni,  in  libe- 
rum  maritagium,  ex  dono  Petri  de  Goldington  et  Evae  uxoris 
suae,  et  unde  Willielmus  pater  ejus  et  Johanna  uxor  ejus  seisiti 
f  uerunt  tempore  Henrici  Regis  patris,  et  ipse  Johannes  Crioill 
postea,  capiendo  inde  explecia  ad  valenciam  XX  solidorum, 
etc.  Et  inde  protulerunt  cartam  Petri  de  Goldington,  et  Evae 
uxoris  suae,  donationem  testantem.  Petrus  venit  et  defendit 
jus,  etc.,  et  dicit  quod  terra  ilia  de  Winchinton  fuit  maritagium 
Evae  matris  suae,  et  eidem  descendit  tanquam  recto  heredi,  et 
offert  defendere  jus  et  donationem  cartae,  etc.  Et  praeterea 
ponit  se  in  magnam  assisam  Domini  Regis,  etc.  Ipsa  e  contra 
dicit  quod  ponit  se  in  magnam  assisam,  si  sufficere  ei  non 
potest  carta  Petri  patris  sui  et  Evaa  matris  suae  (quae  testatur 
quod  si  non  possint  et  terram  illam  warrantizare  excambium 

(c)  Plac.  Ab.  22;  Stiff.,  rot.  7. 


NOTE  (88).  APPENDIX.  573 

ei  facient  ad  valenciam  in  Stokes  vel  in  Cotes),  et  OIVCB  voces 
testium  carte,  etc.  (d) 

The  following  passage  of  Bracton,  already  cited  for  other 
purposes  in  previous  notes,  seems  decisively  to  confirm  the 
same  view  of  the  original  meaning  of  the  profert : 

Ostendere  debet  tenens  chartam  ad  probandam  exception  em 
suam;  quodsinon  fecerit,  exceptio  sua  nulla,  et  amittat  sicut 
indefensus.  Si  autem  chartam  forte  exhibere  non  possit,  quia 
illam  ad  manum  non  habuerit,  de  necessitate  erit  ad  patriam 
recurrendum.  Et  eodem  modo  si  casum  allegaverit,  et  casum 
probaverit.  (e) 

On  this  subject  it  is  not  undeserving  of  remark  that  though 
in  the  king's  bench  the  profert  is  made  in  the  body  of  the  dec- 
laration, yet  in  the  common  pleas  its  proper  place  is  at  the 
conclusion  —  a  position  that  entirely  corresponds  with  the 
idea  that  it  is  derived  from  the  old  rule  of  law  in  question, 
under  which  it  was  the  practice  to  make  the  offer  of  proof  at 
the  conclusion  of  the  pleading, —  as  appears  by  the  examples 
cited  in  this  note,  and  by  a  great  variety  of  entries  in  the 
Placitorum  Abbreviatio. 

NOTE  (88).     See  p.  469. 

The  declaration  should  also  conclude  with  the  production  of 
suit.  The  author's  text,  which  is  now  obsolete,  but  which  is  in- 
structive, is  as  follows: 

"  This  applies  to  actions  of  all  classes  —  real,  personal  and 
mixed. 

"In  ancient  times  the  plaintiff  was  required  to  establish  the 
truth  of  his  declaration  in  the  first  instance  and  before  it  was 
called  into  question  upon  the  pleading  by  the  simultaneous 
production  of  his  secta;  that  is,  a  number  of  persons  prepared 
to  confirm  his  allegations.  The  practice  of  thus  producing  a 
secta  gave  rise  to  the  very  ancient  formula,  almost  invariably 
used  at  the  conclusion  of  a  declaration  as  entered  on  record, 
et  indeproducit  sectam.;  and,  though  the  actual  production  has 
for  many  centuries  fallen  into  disuse,  the  formula  still  remains.  (T) 
Accordingly,  except  the  count  on  a  writ  of  right  and  in  dower, 

(d)  Vide  Plac.  Ab.  63;  Leic.,  rot.  13. 

(e)  Bract.  34  a. 

(.1)  As  early  as  7  Ed.  2,  it  had  become  a  mere  form;  for  it  is  said  in  a  case  reported  of  that 
year,  cest  court  (f.  e.,  the  common  pleas)  ne  soeffre  mye,  la  sute  estre  examine.    7  Ed.  2, 242. 
37  v 


574:  APPEXDIX.  NOTE  (88). 

all  declarations  constantly  conclude  thus:  'And  therefore  he 
brings  his  suit,'  etc.  The  count  on  a  writ  of  right  did  not,  in 
ancient  times,  conclude  with  the  ordinary  production  of  suit, 
but  with  the  following  formula  peculiar  to  itself:  l  Et  quod 
tale  sit  jus  suum  offert  disrationare  per  corpus  talis  liberi  hom- 
inisj  etc. ;  and  it  concludes,  at  the  present  day,  with  an  abbre- 
viated translation  of  the  same  phrase :  'And  that  such  is  his 
right,  he  offers,'  etc.  The  count  in  dower  is  an  exception  to 
the  rule  in  question,  and  concludes  without  any  production  of 
suit  —  a  peculiarity  which  appears  always  to  have  belonged 
to  that  action. 

"  "We  may  take  occasion  to  notice  in  this  place  that  subjoined 
to  the  declaration,  in  proceedings  by  bill,  there  is  an  addition 
of  the  names  of  two  persons,  now  fictitious  ones,  &s  pledges  for 
the  prosecution  of  the  suit.  By  the  old  law  it  was  necessary 
that,  before  the  sheriff  executed  the  original  writ,  the  plaintiff 
should  give  him  security  that  he  would  pursue  his  claim.  This 
regulation  seems  to  have  been  extended  to  proceedings  by  bill 
also;  but  in  these  proceedings  the  security  would  appear  to 
have  been  given,  not  to  the  sheriff,  but  to  the  court  itself,  and 
the  time  for  giving  it  was  apparently  that  of  filing  the  bill. 
Hence,  the  practice  in  question,  of  entering  pledges  at  the  foot 
of  declarations  by  bill.  These  pledges,  however,  are  now,  in  all 
cases,  a  mere  matter  of  form,  no  such  security  being  actually  given 
in  proceedings  either  by  bill  or  original." 

NOTB  TO  §  94  p.  152. — The  common-law  courts  in  England  were  very 
strict  as  to  the  manner  of  presenting  certain  defenses,  and  required  that 
some  should  be  presented  in  person  and  others  might  be  by  attorney  or  bar- 
rister and  others  must  be  by  counsel  Nispel  v.  W.  U.  Ry.  Co.,  64  III  811. 

In  modern  practice  every  man  may  plead  his  own  cause,  and  it  would 
seem  to  follow  that  any  pleading  which  professed  to  come  from  the  parties 
must  be  noticed  whether  signed  or  not. 

A  plea  to  the  jurisdiction  should  profess  to  be  in  person  (1  Chitty,  PL 
*433),  because  it  is  said  the  appointment  of  an  attorney  of  the  court  admits 
jurisdiction.  Id.  *457;  2  Saund.  209  b.  In  America  the  ancient  strictness 
•was  formerly  observed,  as  to  the  kinds  of  pleas  which  must  be  presented 
in  person  signed  by  attorney  or  counsel  President,  etc.  v.  Miller,  2  Cain. 
'60;  Satterlee  v.  Satterlee,  8  John.  327;  Doubois  v.  Philips,  5  id.  236.  A 
signature  by  a  firm  in  the  firm  name  is  sufficient  Zimmerman  v.  Mead,  18 
III  804  See  Pain  &  Duer's  Pr.  439. 

Where  a  statute  requires  the  complaint  to  be  signed  by  the  plain  tiff  or  his 
attorney,  the  signing  of  the  verification  is  sufficient  Barrett  v.  Josylin,  29 
N.  Y.  Sup.  1070 ;  Harrison  v.  Wright,  1  N.  Y.  Rep.  786.  See  notes  6-d 


INDEX. 


References  are  to  pages. 

ABATEMENT  (see  PLEAS;  JUDGMENT)  — 
origin  of  term,  533. 
pleas  in  — 

when  necessary,  181. 

conclusion  of,  448. 

ABSQUE  HOC  (Without  this  — see  SPECIAL  TRAVERSE),  291. 

ancient  use  of,  549. 
ACCIDENT  — 

will  not  give  rise  to  cause  of  action,  35. 

presumption  from  happening,  426. 
ACCORD  AND  SATISFACTION  — 

what  constitutes,  324. 

plea  of,  in  assumpsit,  324 

replication  to  plea  of,  324. 

ACCOUNT  — 
action  of,  124. 
obsolete  in  England,  124. 
extended  by  statutes,  125. 
concurrent  remedy  with  equity,  124 
supplanted  by  remedy  in  equity,  125. 
theory  is  to  enforce  obligation  to  account,  125. 
when  it  lies,  125. 
defenses,  willingness  to  account,  125. 

or  plene  computavit,  125. 

or  denial  of  obligation,  125. 
defendant  may  be  attached,  124 
jury  trial  in,  124. 

on  single  issue  of  liability  to  account,  124 
state  of  account  is  settled  by  referees  or  auditors,  124 
power  of  auditors  in,  124 
judgment  in  — 

quod  computet,  not  final,  125. 

for  larger  sum  than  demanded,  125. 
final  judgment  in,  126. 
ACCOUNT  STATED  — 
asmmpsit  for,  134. 
a  defense  to  action  of  account,  125. 
ACTIONS  (see  FORMS  OF  ACTION)  — 
outline  of,  p.  96a. 
the  antithesis  of  suit  in  chancery,  65. 


576  INDI:X. 

Eeferences  are  to  pages. 

ACTIONS  (continued)  — 
defined,  105. 

attempts  to  blend  unprofitable,  27. 
form  differs  according  to  objects  of,  131. 
classification  —  real,  personal  and  mixed,  105. 

distinguishing  features,  105. 
real  action  — 

defined,  106,  n. 

exists  in  New  York,  see  Outline,  p.  96a. 

formerly  called  feudal,  112,  n. 

generally  abolished,  112. 
personal,  defined,  105,  106. 
personal  actions  enumerated,  122. 
mixed,  defined,  106. 
modern  mixed  actions,  114 

forcible  entry  and  detainer,  114. 

waste,  117. 

writ  of  entry,  118. 

trespass  to  try  title,  120. 

ejectment,  139. 

ex  delicto  and  ex  contractu  distinguished,  31,  106. 
lies  only  for  infringement  of  right,  65. 
will  not  lie  on  condition  broken,  420. 

single  action  may  involve  several  distinct  causes  of  action,  259. 
right  to  bring  may  be  transferred,  68. 
must  be  prosecuted  by  party  injured,  36. 

codes  require  to  be  prosecuted  in  name  of  real  party  in  interest,  40,  50. 
common  law  did  not  allow  this  as  to  assigned  choses,  36,  37. 

but  allowed  use  of  name  of  assignor,  57. 
how  begun,  108. 

when  regarded  as  commenced,  108,  109,  n. 
use  of  original  writ  in  beginning,  108. 
now  begun  by  prcecipe  or  notice,  108,  n.  1. 
novel  modern  actions,  136. 

for  inducing  breach  of  contract,  137. 

for  mental  and  nervous  injuries,  137. 

what  local  and  transitory,  378. 

AD  DAMNUM,  clause  in  declaration,  example,  468. 
AD  EXITUM  (the  issue),  147. 
ADMIRALTY  CAUSES  — 

cognizable  by  federal  courts  only,  379. 
ADMISSIONS  (in  pleadings)  — 

by  failure  to  deny,  322. 

effect  in  other  suits,  370. 

rule  applied  in  chancery,  323. 
ADVERSE  POSSESSION  — 

effect  on  right  of  sale,  89. 

of  property,  cannot  be  ignored,  90. 


INDEX.  577 

References  are  to  pages. 


ADVOCATE  — 

formerly  special  pleader,  147,  511. 
AGE  — 

who  required  to  plead  infancy,  414 

presumption  as  to,  414. 

AGENT  (see  PRINCIPAL  AND  AGENT;  PARTIES)  — 

when  necessary  party,  41. 
AGGRAVATION  — 

matters  of,  how  pleaded,  429. 
AIDER  (see  PLEADING  OVER)  — 

by  verdict,  example  of,  100. 

formal  errors  unavailing  after  verdict,  271,  433. 

omitted  facts  presumed,  272. 
ALIA  ENORMIA  (Other  wrongs  then  and  there  did)  — 

effect  of  allegation,  95. 

admits  proof  of  seduction,  130. 

use  of,  in  trespass,  289. 

ALIENATING  AFFECTIONS  — 
action  for,  91. 

ALIEN  ENEMY  — 
disability  to  sue,  65. 

does  not  abate  but  suspends  action,  181. 
how  regarded,  415. 

ALLEGATA  ET  PROBATA  — 

must  correspond,  134,  220. 

same  general  rule  in  code  and  common -law  states,  80S. 

cannot  prove  trespass  by  proof  of  case,  23. 

apparent  violation  in  some  code  states,  132,  n. 

as  to  time,  place,  quantity,  value,  409. 

as  to  condition  and  waiver.  420. 

as  to  descriptive  matter,  463. 
ALLEGATION  — 

is  pleading,  10. 

modern  reqxiirement  as  to,  154. 

mariner  of,  254 

omitted  allegations,  rule,  416. 

implied  allegations,  416. 

ALTERNATIVE  PLEADING  (see  PLEADING). 
AMBIGUITY  (see  PLEADING)  — 

rule  as  to,  432. 

how  treated,  432. 

how  treated  on  demurrer,  433. 

effect  after  verdict,  416,  433. 
AMENDMENT— 

editor's  note  33,  p.  530. 

various  statutes  of,  530,  531. 

effect  of  statutes  on  common  law,  488. 


578  INDEX. 

References  are  to  pages. 
AMENDMENT  (continued)  — 

former  reluctance  in  allowing,  17. 
common-law  liberality  in,  530. 
the  ancient  practice,  211. 
importance  in  reform  procedure,  22. 
statute  cures  objection  of  form,  100,  250. 

non-conformity  to  writ,  100. 
obviates  danger  of  misjoinder,  64. 
cures  uncertainty  in  allegation,  433. 
helps  defects  of  common  counts,  29. 
objects  of,  533, 

is  not  substitution  of  new  and  different  matter,  533. 
change  as  to  cause,  533. 
departure  — 

by  amending  declaration,  453. 

may  be  by  inserting  jurisdictional  facts,  211. 
ad  damnum  may  be  changed,  468. 

but  new  inconsistent  matter  not  allowed  in  equity,  '453. 
before  judgment  — 

is  of  course  at  common  law,  211. 

general  liability  under  statutes,  211. 

cause  of  action  cannot  be  changed,  211. 

but  ground  of,  may  be,  456,  457. 
after  judgment  — 

in  discretion  of  court,  211. 

application  after  judgment,  558. 
practice  in  presenting,  211. 
allowed  on  reasonable  terms,  211. 

AMERCEMENT  (see  JUDGMENT),  241. 

ANALYSIS  — 

as  aid  to  pleader,  525. 

of  this  treatise,  2. 
ANOTHER  ACTION  PENDING- 

abatement  plea  favored,  182. 
ANOTHER  JUDGMENT  RECOVERED  (see  RES  ADJUDICATA). 

ANSWER  (see  PLEA)  — 

must  give  notice  of  ground  of  defense,  97. 
should  be  as  complete  as  a  special  plea,  188. 
when  stricken  out,  479. 

ANTICIPATORY  BREACH  (see  CONTRACTS). 

APPEAL  — 

a  statutory  remedy,  247. 

is  a  continuation  of  case,  247. 

formerly  not  allowed  from  decision  of  fact,  247. 

disposal  of  case  on,  252. 
APPEARANCE  — 

ancient  modes  of,  146,  510. 

modern  practice,  149. 


INDEX.  579 

References  are  to  pages. 

APPEARANCE  (continued)  — 
when  by  attorney,  574 
when  in  person,  574 
voluntary,  waives  process,  150. 

confers  jurisdiction  of  person,  150. 
general  and  special,  150,  n. 
may  general  be  changed  to  special,  150. 
in  person  and  by  attorney,  146. 

ARGUMENT ATIVENESS  (see  PLEADING)  — 
a  defect  of  pleadings,  438. 
example  of,  438. 
how  availed  of,  438. 
argumentive  pleas  may  be  stricken  out,  251. 

ARREST  OF  JUDGMENT  — 
when  motion  for,  allowed,  230. 
effect  of  statute  of  amendments,  230. 
all  preceding  errors  may  be  examined  on,  247. 

ASSAULT  (see  TRESPASS)  — 
may  be  without  battery,  358. 

is  an  attempt  of  personal  violence  with  apparent  means  of  consumma- 
tion, 358,  n. 

without  battery,  how  alleged,  358. 
ASSAULT  AND  BATTERY  — 

is  a  direct  forcible  injury  to  the  person,  127. 
trespass  is  remedy  for,  129. 
declaration,  old  forms,  160,  353. 
modern  complaint,  Wisconsin  code,  358. 
pleas  in  — 

forms,  365-367. 
general  issue  (form),  367. 
statute  of  limitations  (form),  367. 

plea  that  plaintiff  first  assaulted,  son  assault  demesne,  287. 
replication  de  injuria,  288. 

ASSIGNABILITY  OF  RIGHTS  — 

confusion  in  statements  concerning,  36. 

choses  are  assignable,  36. 

what  assignable,  36. 

personal  torts  and  personal  stipulation  not  transferable,  36. 

strictly  personal,  not  assignable,  38. 

an  accrued  right  of  action  for  tort,  when,  38. 

of  property  in  adverse  possession,  38. 

given  effect  in  equity,  39. 

ASSIZE  — 

justices  of,  216. 

ASSIZE  DE  JERUSALEM,  542. 
ASSUMPS1T  (see  TRESPASS  ON  THE  CASE)  — 

originally  an  action  of  tort,  94,  164 


580  INDEX. 

References  are  to  pages. 
ASSUMPSIT  (continued)  — 
early  example  of,  94,  n. 
a  form  of  trespass  on  the  case,  133. 
origin  of  the  action,  183. 
the  ancient  allegation  of  tort,  164 
Mansfield  and  Holt  extend  the  remedy,  136. 
a  substitute  for  action  of  debt,  123,  133. 
in  theory  is  for  damage  for  breach  of  contract,  122. 
when  it  lies,  28. 
forms  of,  28. 

general  and  special  distinguished,  133. 
confusion  in  regard  to  general  and  special,  134. 
general,  never  based  on  express  contract,  134,  n. 
special,  always  based  on  express  contract,  134,  n. 
forms  of  special,  133,  n. 
how  made  applicable  for  money  due,  123. 
for  breach  of  implied  promise,  123. 
implied  where  money  of  one  in  hands  of  another,  42. 
none  implied  from  mere  benefit,  35. 
implied  from  transaction  involving  theft,  86,  87. 
when  it  lies  for  value  of  benefit  obtained  by  tort,  89. 
plea  of  tort  will  not  defeat,  85. 
common  counts,  133,  134. 

indebitatus  count  — 

for  goods  sold  and  delivered  implied  from  conversion,  88. 
need  be  no  sale  by  wrong-doer,  88. 
declarations  in,  163,  359. 

the  allegation  of  a  promise,  133,  n.,  155. 
breach  of  contract,  how  alleged,  408. 
forms  of,  on  servant's  contract,  95. 
general  pleading  in,  98. 

proof  under  general  issue  (see  GENERAL  ISSUE),  278. 
payment,  how  pleaded,  418. 
changed  to  account  by  amendment,  126. 
ATTACHMENT  SUITS  — 

should  be  in  proper  name,  45. 
difficulty  of  amending  names,  45. 
must  conform  to  theory,  99. 

ATTORNEYS— 

signing  of  pleadings,  152. 
AUDIT  A  QUERELA  — 

remedy  to  recall  execution  improperly  issued,  249. 

AUDITORS  — 

in  account,  may  report  in  favor  of  either  party,  125. 

AUTHORITY  — 

certainty  in  pleading,  430. 

AVOWRY  PLEA  (in  replevin)  — 
of  liberum  tenementum,  401. 


INDEX.  581 


References  are  to  pages. 

BANKRUPT  AND  TRUSTEE  — 
rules  as  to  becoming  parties,  72. 

BARRISTER,  147. 

BATTERY  (see  ASSAULT  AND  BATTERY). 

BILL  IN  EQUITY  — 

character  of,  13. 

claim  of,  12. 
BILL  OF  EXCEPTIONS  — 

origin  of,  222,  223. 

what  it  should  contain,  247,  248. 

how  prepared  in  practice,  247. 

must  be  signed  by  judge,  248. 
BILL  OF  PARTICULARS  — 

helps  make  pleadings  definite,  28. 
BILL  — PROCEEDING  BY  (omitted  from  book)  — 

in  English  practice,  100. 

inapplicable  in  United  States,  100,  108. 
BRACTON  — 

formulated  rule  as  to  conforming  to  writ,  99. 

BREVES  (or  Writ)  — 

are  set  forms  of  pleading,  103,  111. 

defined,  505. 
BROUGHAM  — 

views  on  mode  of  reform,  2. 
BURDEN  OF  PROOF,  219. 

on  objection  to  evidence,  222,  223. 

right  to  open  and  close,  219. 
CAPIAS  — 

ad  respondendum,  when  proper,  95. 

when  allowed,  144 

form  of,  144. 
CAPTION  (see  PLEADINGS,  ENTITLING),  477. 

CASE  AND  TRESPASS  (see  TRESPASS  ON  TEE  CASE) 
abolition  of  distinction,  23. 

CASSARE,  523. 

CAUSE  — 

the  proximate  cause  of  an  injury  is  regarded,  104. 

CAUSE  OF  ACTION  (see  RIGHT  OF  ACTION)  — 
elements  of,  36. 
difficulty  of  defining,  104. 
meaning  of,  104 
described,  499. 
not  changed  by  codes,  23. 
elements  of,  not  changed  by  codes,  47. 
is  regarded  as  a  distinct  entity,  47. 


582  INDEX. 

References  are  to  pages. 

CAUSE  OF  ACTION  (continued)  — 
joint,  belongs  to  all  obligees,  48. 
forms  must  correspond  with  cause,  24. 
limited  and  defined  by  original  writ,  112. 
identical  with  original  writ.  112. 
essential  distinction  between,  preserved  by  code,  98. 
none  arises  on  condition  broken,  420. 
in  negligent  injuries,  example,  J75. 
several  may  arise  out  of  one  transaction,  91,  105. 
may  include  distinct  claims,  259. 
how  far  assignable,  39. 

for  breach  of  contract,  when  assignable,  39,  40. 
for  tort,  when  assignable,  40. 
common-law  statement  of  general  rule,  102. 
how  stated  under  code,  24,  156. 
must  be  stated  separately,  98,  498. 
effect  of  changing,  455. 
departure  by  change  in,  454. 
new,  by  amendment,  453. 

CERTAINTY  — 

rule  as  to,  426. 

note  on,  560. 

degrees  of,  required,  434 

of  issue,  required,  260. 

in  pleading  demise,  399. 

in  pleading  grant,  399. 

of  quantity,  quality,  value  —  examples,  386. 

loose  construction  of  the  rule,  386. 

quantity,  quality,  value,  etc. —  where  rule  inapplicable,  388. 

of  time,  is  required,  382. 

in  every  particular,  when  required,  415. 

according  to  the  nature  of  the  case,  425. 

in  pleas  puis  darreign  continuance,  200. 

particularity  in  alleging  conditions  and  offers  to  perform,  407,  408. 

cross-reference  may  help  pleadings,  425. 

rule  against  negative  pregnant,  435. 
CHANCELLOR  — 

office  and  duties  of,  18, 109. 
CHANCERY  — 

rise  of,  17. 

framed  original  writs,  109. 

the  court  of,  19. 

erection  of,  as  a  court,  19. 

power  to  interfere  with  law,  19. 

separate  courts  in  America,  20. 
CHANCERY  PLEADING  (see  PLEADING;  EQUITY  PLEADING)  — 

applies  the  common-law  rules,  12,  14 

requires  direct  and  clear  allegations,  98. 


ITCDEX.  583 


References  are  to  pages. 

CHOSE  IN  ACTION  (see  ASSIGNABILITY)  — 
what  assignable,  36. 
definition  of,  37. 

scope  of  the  word  "chose,"  37,  38. 
distinguished  from  personal  tort,  37. 
negotiability  and  assignability  distinguished,  37. 
who  may  sue  on  assigned,  37. 

CITY  ORDINANCE  — 

form  of  action  for  violation,  123. 

is  fact,  not  law,  in  pleading  must  be  alleged,  308. 
CIVIL  LAW  — 

influence  on  common  law,  6. 

form  of  trial  in,  258. 

influence  on  English  system  of  pleading,  540. 

CLASSIFICATION  OF  LAW,  6. 
CLOSE  — 

defined,  400. 

CODES  — 

New  York  criticised,  8. 

diCer,  9. 

distinctive  features  of  reform,  22. 

novel  ideas  in,  154,  n. 

caused  uncertainty  as  to  theory,  97,  n.  2. 

do  not  introduce  new  causes,  23. 

do  not  abolish  distinction  between  causes,  98. 

mode  of  allegation  under,  12. 

apply  common-law  principles  of  election  of  remedies,  95. 
CODE  PLEADING  — 

dependence  on  common  law,  15. 

does  not  change  the  principles,  15,  154,  155. 

no  more  a  fact  system  than  is  common  law,  28. 

criticised  in  England,  31,  n. 

CODE  PROCEDURE  — 

merit  of,  30. 

a  reformed,  not  a  substitute  procedure,  47. 
COLLATERAL  CONDITION  — 

when  to  be  pleaded,  422. 
COLLOQUIUM  — 

in  libel  and  slander,  154. 
COLOR  — 

meaning  of,  312. 

rhetorical  expression,  550. 

idea  of,  obtains  in  code  pleading,  319. 

use  of,  550. 

kinds  of,  316,  320. 

relates  to  matter  of  form,  319. 


584:  INDEX. 

P.eferences  are  to  pages. 

COLOR  (continued)  — 

plea  wanting,  amounts  to  general  issue,  313. 
example  of  plea  giving,  313. 
example  of  implied  color.  316. 

COMMENCEMENT  OF  PLEAS  — 

rule  as  to,  444 
COMMON  CARRIER  — 

liability  in  tort  for  failure  to  carry,  93. 

prima  facie  liable  in  case  of  accident,  174 

of  passengers,  liable  for  result  which  might  have  been  foreseen,  173. 

not  liable  for  unforeseen  assassination,  174,  175. 
COMMON  COUNTS  (see  GENERAL  ASSUMPSIT)  — 

are  general  statements,  98. 

reason  for  use,  28. 

enumerated,  28. 

objections  to,  28. 

only  allowable  in  contracts,  28. 

useful  so  long  as  implied  contracts  are  recognized,  29. 

always  state  a  fictitious  contract,  156. 

the  usual  declaration  on  general  assumpsit,  155. 

objectionable  to  codifiers,  156,  n. 

and  formerly  of  doubtful  propriety,  156. 

but  are  used  under  the  code,  29,  156,  364,  441. 

utility  of,  363. 

for  single  cause.  362. 

forms  of,  28,  359. 

example  of,  163, 164 
COMMON-LAW  PLEADING  (see  PLEADING)  — 

principles  of,  essential  to  all  systems,  27. 

necessity  for  understanding,  254 

peculiar  to  English  law,  255. 

distinctive  feature  of,  257. 

necessary  to  jury  trial,  257. 

requires  parties  to  evolve  dispute,  256. 

former  excessive  subtlety,  490. 

merits  of,  482. 

advantages  and  defects  of,  486. 
COMMON  TRAVERSE  (see  TRAVERSE)  — 

couched  in  negative,  275. 
COMPANIES  — 

rules  as  to  being  parties,  75. 

COMPLAINT  OR  CLAIM  (see  DECLARATION)  — 
ancient  formulae,  508. 

must  indicate  nature  of  cause  of  action,  98,  99. 
must  state  facts  describing  cause  of  action,  23. 
must  differ  according  to  nature  of  cause,  23. 
must  adopt  some  theory,  24. 
need  not  conform  to  writ,  24 


INDEX.  585 

References  are  to  pages. 
CONCLUSION  — 

of  pleading,  rule,  473. 

of  various  pleas,  examples,  444,  448. 

not  proper  allegations,  410. 
CONCURRENT  REMEDIES  — 

action  and  suit  at  same  time,  90. 

CONDITIONS  — 

breach  of,  will  not  sustain  action,  420. 

performance,  how  pleaded,  419. 
CONFORMITY  TO  WRIT  (see  THEOKY)  — 

equal  to  theory  of  action,  90,  97. 

the  common-law  and  code  rules  stated,  97,  98,  99. 

rule,  how  far  required,  24. 

ancient  rule  relaxed,  99. 

rule  inapplicable  where  several  actions  joined,  99. 

violation  cured  by  pleading  over,  99. 

strictness  in  attachment,  99. 
CONSEQUENTIAL  DAMAGE  — 

to  land,  when  and  where  remediable,  137. 
CONSEQUENTIAL  INJURY  (see  TRESPASS  ON  CASE). 
CONSORTIUM  - 

is  in  nature  of  property,  91,  92. 
CONSPIRACY  — 

modern  action  for,  137. 

CONTINUANCE  — 

denned,  14d 
to  plead,  206. 
CONTINUING  NUISANCE  (see  NUISANCE)  — 

successive  suits  for,  90. 
CONTRACTS  — 

implied,  fiction  invoked,  29. 

basis  of  implied  promise,  86. 

inducing  breach  of,  when  actionable,  35. 

infant's,  how  far  binding,  76. 

may  be  essential  element  of  tort,  107. 

action  for  anticipatory  breach,  123. 

doctrine  of  implied,  87. 

illustrated,  88. 

when  presumed  to  be  written,  429. 
implied,  how  alleged,  441. 
setting  out  written,  allowable,  441. 
statutes  abolish  distinction  between  sealed  and  simple,  126. 

this  affects  form  of  suit,  126. 
breach  does  not  always  discharge,  123. 
breach  indicated  by  pleading,  123. 
preventing  performance  is  a  tort,  92. 


586  IXDEX. 

References  are  to  pages. 

CONTRACTS  (continued)  — 

waiving  and  suing  ex  delicto  for  acts  constituting  breach,  85. 

right  to  substitute  parties,  89. 

parties  to  suits  on,  specific  rules  as  to  who  may  sue  and  be  sued,  74 

only  parties  and  privies  can  sue  on,  67. 

exception  as  to  insurance  policies,  67,  rules  10,  11. 

the  doctrine  of  privity,  41  et  seq. 

when  joint,  and  when  joint  and  several,  48. 

may  contain  independent  stipulations,  49. 

if  interest  several,  though  language  joint,  each  may  sue,  49. 

stipulation  may  be  joint,  several,  or  joint  and  several,  49. 

but  probably  not  as  to  obligees,  49. 

single  stipulation  cannot  be  joint  and  several  as  to  covenantees,  67. 
only  covenantee  can  sue  on  sealed  contract,  42,  67. 
except  covenants  running  with  land,  67. 

CONVERSION  (see  TROVER)  - 
technical  meaning  of,  165,  n. 
what  constitutes,  38,  39,  135. 
intent  immaterial,  135. 

theory  is  recovery  of  damages  for  conversion,  135. 
owner  may  ignore  and  follow  property,  85. 
may  be  ignored  and  property  sold,  89. 

or  suit  brought  for  value,  89. 
purchaser  in  good  faith  may  be  guilty  of,  135. 
co-tenant  may  be  guilty,  136. 

tenant  in  common  guilty  of,  by  destroying  property,  136. 
no  justification  in,  165. 

CORAM  NON  JUDICE  — 

action  extra  jurisdiction,  34 

writ  of,  246,  248. 
CORPORATIONS  - 

rules  as  to  parties  to  action,  70. 

COSTS  — 

when  and  how  recovered,  241. 

COUNT  (see  DECLARATION)  — 
in  declaration,  23. 
origin  of  term,  555. 
several,  when  allowed,  356. 
in  tort  and  contract,  93. 

COUNTRY  — 

concluding  to,  215. 

COURTS  — 

source  of  jurisdiction  in  England,  20,  108. 

in  America,  109. 

cannot  set  themselves  in  motion,  34 
superior  court  of  England,  107. 
jurisdiction  of,  107. 


INDEX.  587 

References  are  to  pages. 
COURTS  (continued)  — 

rise  of  chancery  court,  17. 

of  chancery  in  America,  20. 

nisi  prius  and  in  bank,  distinction,  223. 

of  general  and  special  jurisdiction,  179. 

can  decide  only  matters  presented  by  the  issues,  34,  97. 

king's  bench,  ambulatory,  124. 

COVENANT— 

lies  on  any  promise  signed  and  sealed,  126. 
distinguished  from  debt  and  assumpsit,  123. 
when  joint  and  several,  rules,  49., 
only  sued  on  by  covenantee,  67. 

except  those  running  with  land,  67. 
declaration  in,  158,  289. 
must  allege  that  contract  was  sealed,  126. 
the  substance  of  the  covenant  must  be  alleged,  126. 
plea  with  special  traverse,  29L 
form  of  replication  in,  297. 

CRACKENTHORP  — 
address  quoted,  2. 

CURIA  REGIS  — 

branch  of  king's  court,  18. 

CURSITOR  — 

office  and  duty,  145. 

DAMAGES  — 

for  general  damages,  see  various  actions  —  assumpsit,  debt,  case,  etc. 
the  aim  of  most  personal  actions,  26,  106. 

account  an  exception,  124. 
pure  real  action  does  not  ask  damages,  96a,  106. 
an  element  of  most  actions,  35. 
when  awarded  in  equity,  90. 
recoverable  for  every  injury,  36. 
to  be  actionable  must  arise  from  breach  of  duty,  35. 

and  one  due  to  the  plaintiff,  35. 

but  where  there  is  injury,  damages  implied,  36. 
where  injury  appears  benefit  will  not  prevent  recovery,  36. 
damnum  absque  injuria  will  not  sustain  an  action,  35. 
considerations  of,  influence  election  of  remedy,  93. 
consequential,  recoverable  in  tort,  93. 
more  remote  in  tort  than  on  contract,  93. 
in  defamation,  168. 

consequential,  the  basis  of  action  on  the  case,  137. 
how  alleged,  468. 
on  default,  how  ascertained,  240. 

defaulted  defendant  may  introduce  evidence  as  to,  240,  n. 
special,  if  claimed,  must  be  alleged,  164. 
in  defamation  cases,  168. 


588  INDEX. 

References  are  to  pages. 
DAMAGES  (continued)  — 
exemplary  or  punitive  — 

may  be  awarded  when  conduct  wanton,  165. 
in  forcible  entry  and  detainer,  116. 
restricted  to  sum  claimed,  468. 

DEBT  — 

lies  on  obligation  to  pay  money  due  by  express  or  implied,  simple  or 

sealed  contract,  or  by  custom  or  statute  or  city  ordinance,  122. 
original  writ  of  (form),  124. 

was  original  action  for  price  of  goods  sold,  123,  n. 
is  more  ancient  than  actions  for  breach  of  contract,  122,  n. 
is  frequently  concurrent  remedy  with  assumpsit,  122. 
distinguishable  from  assumpsit,  122. 

assumpsit  is  for  damage  for  breach  of  contract,  122. 

debt  is  for  money  due  according  to  obligation,  122. 
distinguishing  feature  is  not  certainty  of  amount,  but  that  it  was 

money  due  according  to  obligation,  123. 
lies  to  recover  fixed  sum  of  money,  122. 
the  sum  need  not  be  absolutely  ascertained,  122. 
not  theoretically  applicable  to  anticipatory  breach  of  contract,  123. 
appropriate  to  recover  instalments  due,  123,  n. 
form  of  original  writ,  124. 
form  of  in  debet  and  in  detinet,  124. 
in  detinet  replaced  by  replevin,  124. 
form  of  declaration,  157. 
simple  contract,  158. 
on  a  bond,  extent  of  pleading  in,  336. 

pleas  —  general  issue,  on  specialty  or  record,  non  est  factum,  279. 
on  simple  contract,  several  general  issues,  280. 
performance,  how  alleged,  408. 
plea  of  discharge,  421. 
plea  non  damnificatus,  421. 
certainty  in  plea  excusing  payment,  408. 

DECLARATION  — 

for  forms,  see  various  actions. 

DECLARATION  OR  COUNT  (see  COMPLAINT)— 
the  plaintiff's  first  pleading,  152. 
is  similar  to  a  complaint,  23. 
province  and  function  of,  28. 
must  allege  facts  constituting  cause  of  action,  £8. 
must  notify  parties  of  grounds  of  action,  28. 
should  not  be  a  jumbled  recital  of  facts,  98. 
must  indicate  the  cause  of  action  relied  on,  98. 
must  have  separate  counts  or  paragraphs  for  each  cause,  98. 
anciently  recited  original  writ,  99,  466. 

matter  of  form,  and  is  cured  by  pleading  over,  100. 
states  cause  more  specially  than  writ,  99. 
structure  of  modern,  153. 


INDEX.  589 

References  are  to  pages. 

DECLARATION  OR  COUNT  (continued)  — 
inducement  in,  153. 
facts,  how  alleged,  153. 

stating  legal  effect  and  evidentiary  facts  distinguished,  156. 
on  implied  promise,  how  facts  alleged,  155. 
may  include  several  demands,  348. 
separate  count  for  each  cause,  357. 
several  breaches  of  contract  in  one  count,  357. 
one  good  count  sufficient,  452. 
should  lay  damages,  468. 
should  have  venue,  273. 

DEEDS  — 

profert  of,  474,  475. 
DEFAMATION  (see  SLANDER  AND  LIBEL),  166. 

DEFAULT  — 

judgment  by,  239. 

•adopted  in  chancery  in  analogy  to  practice  in  law  courts,  249,  n. 

inquiry  of  damages  on,  240. 

defendant  may  introduce  evidence  as  to  damages,  240. 
DEFENSE  — 

defined,  469,  470,  471. 

matter  of  form,  469. 

must  be  consistent,  431. 

DE  INJURIA  PLEA  (see  TRAVERSE)— 

form  of,  287. 

a  general  traverse,  287. 

does  not  negative  the  words  of  opposite  pleading,  287. 

proper  only  in  excuse,  288. 

always  tenders  issue,  187. 

application  of,  437. 

with  special  traverse,  296. 

the  traverse  of,  287. 
DEMAND  OF  VIEW,  201. 

DEMINIMIS  NON  CURAT  LEX  — 

does  not  apply  to  infringements  of  right,  36. 
mere  scintilla  of  evidence  so  regarded,  385. 
DEMURRER  — 

etymology  of,  521. 
when  appropriate,  177. 
always  in  order,  195. 

except  that  it  is  not  allowed  to  a  demurrer,  339. 
with  imparlance,  213. 
form  of  parol,  181. 
form  of  general,  190. 
form  of  special,  190. 
general,  questions  substance,  265. 
38 


590  INDEX. 

References  are  to  pages. 

DEMURRER  (continued)  — 
special,  questions  form,  266. 
to  a  complaint  in  Iowa,  191. 
effect  of,  189,  267. 
admits  facts  well  pleaded,  267. 
questions  sufficiency  of  pleading,  265. 
reaches  want  of  jurisdiction,  191. 
reaches  inconsistency  and  repugnancy,  431. 
pleading  over  after  overruling,  waives,  177,  190,  n. 
pleading  over  in  bar  does  not  waive  demurrer  to  pleas  in  abatement,  177. 
joinder  in,  forms  issue  of  law,  193,  339. 
on  decision,  court  considers  whole  record,  268. 
rules  as  to  carrying  back,  268,  270. 
one  good  count  sustains  declaration,  452. 

to  declaration;  if  sufficient  appear  to  state  cause,  overruled,  266. 
judgment  on,  to  plea  in  abatement,  269. 
DEMURRER  TO  EVIDENCE  — 

use  and  office  of,  224,  385. 
DENIAL  (see  TRAVERSE)  — 

in  codes,  used  in  place  of  traverse,  566. 
DEPARTURE  — 
defined,  453. 
object  of  rule,  458. 
like  variance  in  evidence,  453. 
when  it  occurs,  453. 
of  fact,  455. 

by  introducing  new  cause,  98. 

by  changing  cause  of  action,  454. 
of  law  — 

in  changing  theory  and  ground  of  action,  98. 

by  changing  legal  ground  of  action,  455,  4C6. 

in  replication,  454. 

in  rejoinder,  454 

how  availed  of,  458. 

note  on,  564. 
DETINUE  — 

lies  to  recover  specific  things  personal,  126. 
cause  of  action  is  detention,  126. 
there  need  be  no  conversion,  126. 
plaintiff  must  have  legal  title,  126. 

and  have  right  to  possession,  126. 
action  will  lie  although  defendant  has  parted  with  possession,  127. 

or  where  goods  have  perished,  127. 

damage  in  such  case,  127. 
judgment  in,  is  for  goods  or  value,  127. 
lies  in  New  Hampshire  and  Illinois,  127. 
in  other  states  a  substitute  is  given,  127. 
declaration  in,  160. 


INDEX.  591 

References  are  to  pages. 

DILATORY  PLEAS  (see  PLEAS)  — 
do  not  confess  and  avoid,  826. 
commencement  and  conclusion,  448,  449. 
verification  required,  523. 
order  of  pleading,  472. 

DIRECTING  A  VERDICT  — 

practice  of,  385. 
DISABILITY  — 

who  required  to  plead,  414. 

DISCOVERY  — 

nature  of  bill,  12. 

oyer  and  profert  analogous  to,  204 

bill  of,  pleading  in,  13. 

abolished  by  codes,  13. 

reason  for  disuse  in  other  states,  13. 

DOCUMENTS  — 

oyer,  profert,  production,  inspection,  204. 

DOWER  — 

assignment  of,  how  enforced,  113. 

actions  to  recover,  113. 

writ  of  dower,  113. 

form  of  count  in,  157. 
DUPLICITY  — 

unobjectionable  in  civil-law  system,  552. 

meaning  of,  346. 

rule  against,  346. 

an  objection  of  form  only,  346. 

reached  only  by  special  demurrer,  346. 

many  facts  constituting  one  point,  not,  353. 

cannot  at  same  time  plead  and  demur  to  the  same  matter,  371. 

several  defendants  may  have  different  defenses,  350. 

illustration  of  theory  of,  176. 

example  in  declaration,  346. 

examples  in  pleas,  347. 

relates  to  single  claim,  348. 

what  constitutes  a  single  cause  or  defense,  348. 

many  facts  may  constitute  but  a  single  point,  354. 

declaration  may  include  several  demands,  348. 

several  answers  in  one  pleading,  350. 

single  count  can  embrace  but  one  cause,  98. 

general  issue  as  construed  is  double,  355. 

matter  in  inducement  with  traverse  is  not,  352. 

matters  ill  pleaded  may  constitute,  351. 

immaterial  matter  cannot  constitute,  351. 
EJECTMENT  — 

origin  of  action,  139. 

character  of,  509. 


592  INDEX. 

References  are  to  pages. 

EJECTMENT  (continued)  — 

a  substitute  for  writ  of  right,  141. 

equitable  ejectment  in  Pennsylvania,  142. 

sometimes  classed  as  a  real  action,  139. 

a  species  of  personal  action,  140. 

a  species  of  trespass,  140,  161. 

common  mode  of  trying  title,  140. 

invented  in  reign  of  Ed.  II.,  140,  n. 

originally  lay  only  to  recover  possession  of  land,  140. 

against  party  in  possession,  142. 

now  against  party  exercising  acts  of  ownership,  142. 

in  order  to  try  title,  fiction  of  ouster  was  invented,  140. 

plaintiff's  title,  142. 

claimant  must  have  right  of  entry,  141. 

equitable  title  will  not  sustain,  142. 

lies  for  corporeal  hereditament,  141,  n. 

may  recover  dower  and  damages  in,  113. 

not  applicable  to  all  titles,  140. 

possession  is  recoverable  under,  140. 

parties  in,  rules,  83. 

declarations  in,  141,  162. 

fictions  abolished  or  ignored,  162. 

description  of  premises,  141. 

damages  recoverable,  143. 

judgment  in,  143. 

sheriff  may  deliver  possession,  141. 

ELECTION  OF  PARTIES  (see  PARTIES). 
ELECTION  OF  REMEDIES,  85. 

doctrine  of  equitable  origin,  85. 

extent  to  limits  of  right,  89. 

what  constitutes,  90. 

causes  must  be  the  same,  91. 

that  subject  is  the  same,  not  enough,  91. 

must  be  of  inconsistent  actions,  90. 

considerations  influencing,  91,  93. 

common-law  principles  universal,  95. 

indicated  by  form  of  action,  96. 

how  indicated  in  code  pleading,  96. 

choice  between  trespass  and  case,  128. 

when  made,  binds,  90. 

in  case  of  contract  of  services  broken  by  master,  94. 

in  case  of  goods  unlawfully  taken,  94. 

for  goods  taken  there  are  three  open,  90. 
ELECTION  TO  DEMUR  OR  PLEAD  — 

considerations  governing,  273. 
EMINENT  DOMAIN  PROCEEDING  — 

concurrent  remedy  for  consequential  damages,  137. 


INDEX.  593 

References  are  to  pages. 

ENGLISH  PLEADING  — 
distinctive  features  of,  257. 
as  to  joinder  of  parties,  493. 

ENTICING  — 

consort,  action  for,  91. 

ENTRY  (see  WRIT  OF  ENTRY). 

EQUITY  — 

Aristotle's  definition,  17. 

Grotius's  definition,  17. 

origin  of  system,  17. 

anciently  a  branch  of  prerogative,  18. 

formerly  administered  by  sovereign,  18. 

formerly  distinguished  from  law,  19. 

early  disorder  in  procedure,  19. 

development  of  procedure,  19,  20. 

source  of  jurisdiction,  19. 

grounds  of  jurisdiction,  19. 

reason  for  such  a  jurisdiction,  20. 

separation  from  law  courts,  19,  20. 

separate  jurisdiction,  20. 

acts  in  personam,  26. 

does  not  directly  affect  property,  28. 

may  adjust  several  issues  relating  to  one  subject,  47. 

awards  damages  incidentally,  90.  . 

EQUITY  PLEADING  (see  PLEADING)  — 

allegations  in  bill  like  some  in  declaration,  13. 

ERROR  (see  WRIT  OF  ERROR;  STATUTE  OF  AMENDMENTS)  — 
coram  nobis,  writ  of,  248. 
of  form  — 

cured  by  statute  of  amendments,  250. 

aided  by  verdict,  272. 

cured  by  pleading  over,  270. 

ERRORS  IN  FACT  — 
what  are,  248. 

ERRORS  IN  LAW  — 
what  are,  249. 
how  they  appear,  249. 
corrected  on  arrest  of  judgment,  247. 

ESTOPPEL'  (see  RES  ADJUDICATA)  — 
at  basis  of  election  of  remedies,  90. 
example  of.  326. 

form  of  replication  setting  up,  327. 
how  regarded,  415. 
by  adjudication,  480. 


594  INDEX. 

References  are  to  pages. 
EVIDENCE  — 

place  in  procedure,  7. 

practice  of  excluding,  385. 

demurrer  to  practice  of,  385. 

legal  effect  of,  decided  by  judge,  222. 

need  not  be  pleaded,  409. 

general  objections,  when  sufficient,  222. 

practice  on  objections,  232. 

order  of,  discretionary  with  judge,  222. 

mere  scintilla,  when  enough,  385. 

EXCEPTIONS  (see  BILL  OF  EXCEPTIONS)  — 
on  exclusion  of  evidence,  247. 
when  taken,  248. 

EX  CONTRACTU  (see  FORMS  OF  ACTION). 
EX  DELICTO  (see  FORMS  OF  ACTION). 
EXECUTION  — 

awarding  of,  245. 

how  recalled,  249. 

EXECUTORS  (see  PARTIES). 

EXITUS  — 

ancient  name  for  issue,  515. 
EXTENSION  OF  TIME  (see  IMPARLANCE,  206). 

FACTS  (see  PLEADING)  — 

at  common  law  tried  by  jury,  14. 
how  alleged  in  equity,  12,  14. 
how  alleged  at  law,  154 
to  be  alleged  in  ordinary  language,  154. 
no  formal  words  required,  443. 
city  ordinance  is,  308. 
foreign  law  is,  308,  409. 
how  alleged  in  declaration,  153. 
presumed,  not  necessarily  pleaded,  415,  416. 
within  opposite  parties'  knowledge,  how  pleaded,  428. 
error  in  decision  of  jury  not  formerly  appealable,  247. 
nor  was  writ  of  error  a  remedy,  247. 

FALSE  IMPRISONMENT  — 
when  it  lies,  170. 
when  action  is  trespass,  170. 
will  not  lie  where  warrant  valid,  173. 
case  is  then  the  remedy,  173. 
reasonable  cause,  how  pleaded,  407. 
declaration  in,  172. 

FELON  - 

disability  to  sue;  Dicey's  rule,  65. 

FELONY  - 

may  exist  in  cause  of  action,  66. 


INDEX.  595 


References  are  to  pages. 

FEME  COVERT  (see  MARRIED  WOMEN)  — 

disability  must  be  pleaded,  414. 
FEME  SOLE,  183. 

FEOFFMENT  — 
defined,  398. 

FEUDAL  ACTION  (see  REAL  ACTIONS),  112. 

FICTIONS  — 
utility  of,  86. 

availed  of  in  all  systems,  86. 
attempts  to  abolish,  22. 
codes  do  not  abolish,  86,  155. 
of  implied  contracts,  87,  123. 
indulged  in  implied  assumpsit,  123. 
codes  apply  in  election  of  remedies,  95. 

FICTITIOUS  PERSON  — 

defense  of,  183. 
FINE  — 

•was  formerly  a  fee  for  process,  110. 
FORCIBLE  ENTRY  AND  DETAINER  — 

a  remedy  before  ejectment,  140. 

is  a  civil  action,  114. 

a  statutory  action,  114. 

object  of  statute,  114, 115. 

an  action  to  recover  possession  of  land,  114. 

what  included  as  land,  115,  116. 

title  is  not  involved,  115. 

lies  against  real  owner,  115. 

wrongful  possessor  forcibly  ousted  may  maintain,  115. 

plaintiff  must  have  had  a  real  possession,  115. 

mere  trespasser  cannot  maintain,  116. 

mere  right  to  possession  not  sufficient,  115. 

when  demand  is  required,  117. 

pedis  possessio  not  necessary,  115. 

scrambling  possession  not  sufficient,  115. 

question  involved  — 

plaintiff's  possession,  115. 

forcible  invasion  by  defendant,  115. 

actual  force  is  necessary,  116. 

by  statute,  lies  for  unlawful  detainer,  117. 

damages  recoverable  — 

nominal,  exemplary  and  actual,  116. 

also  damage  to  person  or  personal  property,  116. 

judgment  no  bar  to  ejectment,  115. 
FORM  — 

pleaders  should  observe,  443. 
FORMEDON,  ACTION  OF  — 

the  action  obsolete,  112. 


596  INDEX. 

References  are  to  pages. 

FORMER  ADJUDICATION  (see  RES  ADJUDICATA)  — 

rule  of,  479. 
FORMS  OF  ACTION  — 

remote  antiquity  of,  110. 

abolishing  distinction  between,  does  not  affect  pleading,  2. 

attempts  to  abolish  futile,  22. 

must  correspond  with  causes,  23. 
difficulty  of  ignoring,  10,  11. 

are  not  abolished,  9,  24 

necessity  for,  in  procedure,  80. 

indicate  essential  distinction  between  causes,  98. 

formerly  indicated  by  original  writ,  103,  109,  110. 

how  formulated  and  preserved,  111. 

numerous  precedents  in  code  works,  24 

codes  resort  to,  in  cases  of  election  of  remedies,  95. 

forms  and  causes  should  agree,  98. 

utility  of,  102. 

in  indicating  election  of  remedy,  95. 

different  actions  must  be  stated  differently,  102. 

abolition  held  to  affect  rule  of  variance,  132. 

effect  of  abolition  on  notice  by  complainant,  132. 

for  breach  of  contract,  122, 123. 

for  money  due  according  to  contract,  122,  123. 

for  breach  of  ordinance,  123. 

FREEHOLD  (see  LIBEEUM  TENEMENTUM) — 
how  pleaded,  400. 
proof  of,  400. 

FRIGHT  — 

damage  by,  remedy,  137. 

GENERAL  DENIAL  — 

and  general  issue  contrasted,  279. 

GENERAL  ISSUE  — 

a  common  form  of  traverse,  276. 

traverses  whole  declaration,  276,  278. 

a  general  pleading,  276. 

dispenses  with  special  pleading,  278. 

abuse  of,  29. 

illogical  use  of,  278,  279,  490. 

a  deviation  from  principle,  283. 

object  of  loose  use,  284. 

how  far  it  should  be  preserved,  20. 

observations  on,  285,  286. 

as  construed,  is  double,  355. 

bill  of  particulars  aids  certainty.  279. 

form  in  various  actions,  276  et  seq. 

with  notice,  use  of,  286. 

not  allowed  with  special  pleas,  368. 


INDEX.  597 

References  are  to  pages. 
GENERAL  ISSUE  (continued)  — 

special  pleas  amounting  to,  286. 

and  general  denial  contrasted,  279. 
GENERAL  PLEADING  — 

when  allowed,  419. 

reason  for  allowing,  462. 

allowed  in  common  counts,  98. 

GROUND  OF  ACTION  — 

distinguished  from  cause,  104 

may  be  shifted  by  amendment,  97,  533. 

HABERE  FACIAS  POSSESSIONEM  (see  WHIT  OP  POSSESSION). 
HUSBAND  AND  WIFE  — 

rules  as  to  right  to  sue  and  be  sued,  71. 

ancient  rules  as  to  identity  obsolete,  71. 

ancient  rules  as  to  joining  in  actions,  77. 

action  for  alienating  affections  of  consort,  91. 
IDEM  SONANS  — 

application  of  rule,  185. 

IDIOTS  — 

must  sue  in  name  of  conservator,  44 
IMMATERIAL  FACTS  — 

may  cause  variance,  466. 

IMPARLANCE  (see  CONTINUANCE)  — 
meaning  of,  206. 
when  allowed,  206. 
general  and  special,  206. 
effect  of  special,  208. 
entry  of,  207. 

IMPERTINENCY  — 
defined,  463. 

IMPLIED  ALLEGATIONS  — 
doctrine  of,  416. 

IMPLIED  ASSUMPSIT  (see  ASSUMPSIT)  — 

general,  logical,  283. 
IMPLIED  CONTRACTS  (see  CONTRACTS)— 

facts  constituting,  may  be  set  out,  441. 
IMPLIED  PROMISE  — 

how  alleged,  155. 

INCIPITUR  OF  JUDGMENT,  241,  242. 
INCONSISTENCY  — 

ground  for  demurrer,  431. 

how  far  allowable,  367. 

INCONSISTENT  DEFENSES  — 
how  far  allowed,  431. 

INCONSISTENT  PLEAS  — 

allowable  under  the  code,  367. 


598  INDEX. 

References  are  to  pages. 

INDEBITATUS  ASSUMPSIT.  133,  n. 

for  money  had  and  received,  example,  88. 
INDUCEMENT  (see  DEFAMATION;  SPECIAL  TRAVERSE)  — 

office  of,  15a 

when  unnecessary,  153. 

matter  of,  will  not  make  pleading  double,  352. 

how  pleaded,  428. 

should  not  be  traversed,  340. 

in  special  traverse,  292. 

in  trespass  — 

property  in  third  person  is  inducement,  285,  n. 
property  in  defendant  is  inducement,  285,  n. 

INFANTS  — 

must  sue  by  next  friend,  44 

rules  as  to  suing,  76. 

liability  on  contracts,  76. 

may  be  sued  and  must  plead  disability,  76. 

judgment  against,  is  valid,  76. 

a  defense  to  be  pleaded  in  abatement,  76,  414 

justifies  plea  in  suspension,  180. 

INJURY  — 

defined,  36,  104 
delegation  of,  154. 

INNUENDO  (see  SLANDER  AND  LIBEL). 

INQUIRY  OF  DAMAGES  — 

how  conducted,  240. 

defaulted  defendant  may  introduce  evidence,  240,  n. 
INSIMUL  COMPUTASSET  — 

or  account  stated,  134,  n. 

INSPECTION  OF  DOCUMENTS  — 
obtaining  order  of,  204 

INSTRUCTIONS  (see  NEW  TRIAL). 
INSURABLE  INTEREST  — 

not  required  where  person  insured  procures  policy,  43. 
INSURANCE  — 

beneficial  interest  in,  when  assignable,  36,  n. 
INTENT  — 

may  be  material  in  trespass,  128. 

how  far  essential,  129. 

immaterial  in  conversion,  135. 

INTEREST  — 

several  kinds  of,  51. 

number  and  connection  of  owners,  51. 

nature  of  interest,  51. 

when  joint  and  several,  50. 


INDEX.  599 


References  are  to  pages. 
INTEREST  AND  PROPERTY  — 
definition,  50. 

IRRELEVANCY  — 

code  name  for  impertinency,  463. 
of  evidence,  how  raised  and  burden  on,  222,  223. 
ISSUE  (see  GENERAL  ISSUE;  PLEADING) — 
defined,  147. 
what  it  is,  102. 
described,  541. 
Coke's  definition,  545. 
chief  object  of  pleading,  147,  262. 
origin  of  term,  258,  515. 
distinct  required  by  common-law,  47. 
formerly  not  required  in  equity,  47. 
required  by  code,  11. 
a  distinct  issue  essential  everywhere,  97. 
introduced  into  chancery  pleading,  103. 
origin  of  coming  to,  256. 

same  method  observed  since  tempo  Henry  II.,  258. 
peculiar  to  English  pleading,  482. 
how  different  from  litis  contestatio,  102. 
similarity  to  litis  contestatio,  543. 
common-law  method  of  ascertaining,  485. 
Scottish  method  of  ascertaining,  484. 
other  modes  of  reaching,  525,  526. 
adjunct  to  jury  trial,  482. 
shows  matters  in  dispute,  255.  , 
limits  jurisdiction  of  court,  97. 
controls  admissibility  of  evidence,  147. 
limits  scope  of  decision,  148. 

controls  effect  of  judgment  as  res  adjudicata,  4,  480. 
is  framed  by  the  parties,  147. 
of  law  and  fact  kept  distinct,  101,  147. 
must  be  on  some  material  point,  147,  258. 
singleness  of,  required,  258,  488. 
certainty  of,  required,  260. 
making  up,  209. 
entry  of,  with  imparlance,  214. 
tendering,  191. 
of  law — 

tendered  by  demurring,  192. 

must  be  accepted,  193. 

by  joinder  in  demurrer,  339. 

are  entered  for  argument,  215. 

formal  joinder  not  required,  194. 

tried  by  the  court,  215. 
of  fact  — 

how  tendered,  332. 

two  affirmatives  do  not  make,  439. 


600  INDEX. 

References  are  to  pages. 

ISSUE  (continued)  — 

two  negatives  insufficient,  440. 

how  accepted  or  avoided,  192. 

not  necessarily  accepted,  193. 

party  may  force  issue  of  law  instead,  193. 

but  when  well  tendered  must  be  accepted,  337. 

on  proper  special  traverse,  306. 

joining  on  immaterial,  results  in  repleader,  231. 

modes  of  trial,  148,  215. 

formerly  no  appeal  from  decision  of,  247. 

remedy  for  error  was  new  trial,  247. 

record  of,  210,  212. 
JOINDER  IN  DEMURRER  — 

makes  issue  in  law,  339. 
JOINDER  IN  ISSUE,  194. 

JOINDER  OF  ACTIONS  (see  SEVERAL  COUNTS)  — 
general  principles  governing,  356. 
rules  of,  destroy  reason  for  conforming  to  writ,  99. 
must  be  of  same  nature,  356. 

cannot  be  distinct  causes  against  different  parties,  46,  n. 
where  parties  are  different,  496. 
requires  several  counts,  356. 
several  counts  separated,  357. 
each  cause  stated  separately,  357. 

the  same  in  code  states,  357. 
code  provisions,  52,  356,  n. 
under  Connecticut  practice  act,  497. 
what  constitutes  a  joinder,  501. 
growing  out  of  same  subject  of  action,  52,  356. 
repugnant,  arising  out  of  same  subject,  cannot  be  joined,  356. 
provisions  of  Connecticut  practice  act,  356,  n. 
of  distinct  rights  of  action  in  the  same  subject  of  action,  48. 
in  actions  ex  contractu,  67,  rule  13. 
the  common  counts,  359. 
several  distinct  trespasses,  357. 
under  canon  and  civil  law,  554. 

JOINDER  OF  PARTIES  (see  PARTIES)  — 

determined  by  nature  of  interest  in  subject,  50. 

modern  reforms  in  rules  as  to,  50,  n.  8,  ch.  IV,  Appdx.,  n.  A. 

equity  rules,  54. 

equity  rules  analogous  to  legal  rules,  55. 

common-law  rules  misunderstood  by  code  writers,  52. 

code  rules,  48,  52,  356. 

all  interested  in  subject  and  relief  may  join,  52. 

all  united  in  interest  must  join,  52. 

a  necessary  plaintiff  may  be  joined  against  his  protest,  56,  57. 
common-law  and  code  rules  contrasted,  52. 
common-law  rules  explained.  52  et  seq. 


INDEX.  601 

References  are  to  pages. 

JOINDER  OF  PARTIES  (continued)  — 

ancient  and  modern  English  law,  494 

English  rule;  leading  case,  493. 

ancient  and  modern  specific  rules  contrasted,  C5  et  seq. 

unity  of  action  required,  494. 

not  necessarily  unity  of  right,  52. 

if  parties  interested  in  subject  and  relief,  52. 

separate  and  distinct  owners  suffering  a  common  damage  may  join, 
52,  53. 

several  having  common,  though  not  joint,  interest,  may,  53. 

several  separate  owners  may  join  to  abate  nuisance  or  prevent  a  com- 
mon trespass,  55. 

all  living  obligees  ex  contractu  must  be  joined,  49. 

separate  interests  and  separate  injury  cannot  be  joined,  54. 

mis  joinder  or  non- joinder  is  fatal,  60. 

in  libel  against  partners.  494. 

of  tenants  in  common,  53. 

in  implied  contracts  arising  from  tort,  49. 

right  of  amendment  prevents  fatal  consequences  of  mistake,  64 

JOINT  RIGHTS  AND  INTERESTS  — 

how  ascertained,  48. 

belongs  to  all,  not  to  each,  48. 

release  to  one  bars  further  remedy,  63. 
JUDGMENT  — 

beyond  the  issue,  void,  4,  148. 

follows  decision  of  the  issue  joined,  230. 

given  on  whole  record,  249. 

interlocutory  —  inquiry,  damages,  240. 

on  demurrer,  disregards  formal  matters,  266. 

how  arrived  at  on  demurrer,  268. 

in  action  of  account,  124 

without  an  issue,  when  allowed,  239. 

by  default  of  appearance,  239. 

by  confession,  240. 

by  nonpros.,  withdrawal  of  suit,  240. 

of  nonsuit,  240,  384 

by  nil  dicit  (for  want  of  plea),  239. 

on  dilatory  pleas,  237,  238, 

by  default  in  common  counts,  29. 

by  default  and  nil  dicit,  are  interlocutory,  240. 

arrest  of,  558,  n. 

non  obstante  veredicto,  when  granted,  231. 

forms  of,  237. 

how  delivered,  241. 

rendered  by  judge,  237. 

entry  of,  241. 

form  of  record,  242. 

how  fai  res  adjudicata,  40L 


602  INDEX. 

References  are  to  pages. 

JUDGMENT  RECOVERED  — 
plea  of,  334 

replication  to  plea  of,  334. 
tried  by  the  record,  334 

JUDICIAL  ACTS  — 

must  appear  of  record,  149. 

JUDICIAL  NOTICE  — 

obviates  pleading,  411. 

of  what  matters  taken,  413. 
JUDICIAL  POWER  — 

cannot  set  itself  in  motion,  34 

how  set  in  motion,  34 

who  may  invoke,  33. 
JUDICIARY  — 

a  separate  branch  of  government,  31. 

part  of  executive,  in  England,  21. 
JURISDICTION  — 

original  source  of,  20. 

new  theory  of,  in  United  States,  109. 

in  United  States  conferred  by  constitution  and  laws,  109. 

basis  of  equity,  26. 

several  kinds  of,  179. 

want  of,  over  subject-matter,  fatal,  179. 

of  person,  may  be  given  by  consent,  179. 

consent  will  not  confer,  of  subject,  179. 

of  subject-matter,  cannot  be  waived,  180. 

questioned  by  demurrer,  191. 
or  by  motion,  191. 

pleas  to,  179. 

may  be  made  to  appear  by  amendment,  211. 

limited  by  issue,  97. 

JURISPRUDENCE  — 

plan  of  procedure  in,  5. 

necessity  for  knowledge  of,  29. 
JURY  — 

original  qualification  of  jurors,  229,  261. 

original  constitution  of,  544. 

modern  qualifications  of,  261. 

decides  on  preponderance  of  evidence,  218,  219. 

awarding  damages,  218. 

may  draw  inferences  from  failure  to  adduce  proof,  219. 

misconduct  of,  effect,  229. 

verdict  unanimous,  218. 
JURY  TRIAL  (see  NEW  TRIAL)  — 

occasioned  common-law  system  of  pleading,  101. 

is  of  facts  only,  101. 


INDEX.  603 

References  are  to  pages. 

JURY  TRIAL  (continued)  — 

requires  law  and  fact  to  be  separated,  101,  257,  260,  261. 

how  preserved  by  code,  14. 

originally  no  part  of  equity  procedure,  47. 

superintended  by  judge,  218. 

formerly  before  four  judges,  217. 

how  preserved  in  New  York  code,  14 

JUS  PR^ETORIUM  — 

similarity  to  chancellor's  discretion,  19. 

LATITAT  (Execution)  — 
first  issue  of,  521. 

LAW  — 

when  regarded  as  fact,  409. 
need  not  be  pleaded,  411. 
judicially  noticed,  413. 

LAW  AND  EQUITY  — 

accidental  cause  of  separate  counts,  22. 
attempt  to  abolish  distinction,  22. 
attempt  to  fuse  disastrous,  22. 
distinction  not  abolished,  23,  n. 
essentially  different,  25. 
procedure  not  alike  under  codes,  24. 
rules  of  decision  alike,  131,  n. 

LAW  AND  FACT  — 

how  separated  for  trial,  257. 
LEGAL  TITLES  — 

not  tried  in  collateral  issues,  89. 
LIBEL  (see  DEFAMATION;  SLANDER  AND  LIBEL)  — 

defined,  166. 

LIBERUM  TENEMENTUM  (Defendant's  freehold)  — 
how  pleaded,  400. 
plea  of,  400. 

need  not  show  commencement  of  title,  401. 
gives  implied  color,  316. 

LITIS  CONTESTATIO  — 

how  different  from  issue,  102. 
how  similar  to  issue,  544. 

LIMITATIONS  — 

may  bar  tort  where  it  does  not  contract,  92. 
LOCAL  AND  TRANSITORY  ACTIONS  (see  VENUE),  378. 

what  are,  379,  557. 

notes  on,  557. 
LUBE  — 

object  of  his  treatise,  12. 


604  INDEX. 

References  are  to  pages. 
LUNATIC  — 

must  sue  in  name  of  conservator,  44 

MAINTENANCE  — 

the  reason  for  restricting  assignability,  39. 
MALICE  — 

when  it  renders  conduct  actionable,  35. 
MALICIOUS  PROSECUTION  — 

when  it  lies,  169. 

will  lie  for  arrest  on  valid  warrant  maliciously  procured,  173. 

probable  cause  in,  171. 

form  of  action,  169,  170. 

MARRIED  WOMEN  (see  PARTIES)  — 

right  to  sue  for  injuries  to  person  or  property,  71. 
MASTER  AND  SERVANT  — 

servant's  remedy  for  broken  contract,  94,  95. 

wrongful  discharge,  remedies,  95. 

action  for  breach,  distinct  from  action  for  wages,  105,  n. 

liability  of  master  for  acts  of  servant,  174. 

declaration  for  injury  by  negligent  servant,  175. 
MAXIM  — 

de  mininis  non  cur  at  lex,  36,  385. 

expressio  eorum  quce  tacite,  etc.,  415. 

ubi  jus  ibi  remedium,  see  UBI  Jus,  33. 

utile  non  vitiatur,  432. 

utile  per  inutile,  etc.,  463. 
MENTAL  SHOCK  — 

when  remediable,  137. 
MISE  — 

meaning  of,  547. 
MISJOINDER  — 

of  defendants  ex  contractu,  how  taken  advantage  of,  61. 

of  plaintiffs  ex  contractu,  60. 

conflict  of  authority  on,  how  questioned,  60. 

of  plaintiffs  ex  delicto,  62. 

of  defendants  ex  delicto,  64. 

how  objected  to,  64. 
MISNOMER  — 

effect  of,  390. 

MIXED  ACTIONS  (see  ACTION). 
MONEY  HAD  AND  RECEIVED  — 

theory  and  example  of,  88. 

will  not  lie  for  value  of  goods  converted,  88. 
MOTION  — 

in  arrest,  questions  whole  record,  249. 

to  exclude  evidence,  385. 

for  new  trial,  247. 


INDEX.  605 

References  are  to  pages. 
MOTION  (continued)  — 

to  strike  out  pleading,  177. 
when  pleas  improper,  251. 
when  proper,  251. 
advantages  of  over  demurrer,  251. 
improper  replication,  370. 
sham  pleadings,  479. 
surplusage,  464 

inconsistent  or  repugnant  pleas,  431. 
to  make  definite,  reaches  argurnentativeness,  438. 

NAME  — 

who  may  sue  on  assigned  choses,  39. 

one  may  sue  in  own  name  on  contract  made  in  another  name,  44. 

must  be  specified,  390. 
NARRATION  (see  DECLARATION). 
NEGATIVE  PREGNANT  — 

defined,  435. 

reason  for  rule,  435. 

objectionable  under  the  code,  343,  435. 

example  of,  436,  561. 

note  on,  561. 
NEGLIGENCE  — 

when  actionable,  173. 

case  the  remedy  for,  136. 

action  for,  passenger  and  carrier,  173. 

general  allegation  of,  when  allowed,  176. 

may  be  alleged  in  various  forms,  176. 

statement  of,  may  be  changed,  457. 

how  proved,  426. 

NERVOUS  SHOCK  — 
when  remediable,  137. 

NEW  ASSIGNMENT  — 
theory  of,  32a 

common-law  rules  applicable  to  code,  331,  n. 
objects  of,  329. 
several  in  same  series,  330. 
proper  only,  when  two  acts  alleged,  328,  330. 
does  not  confess  and  avoid,  327. 
is  abandonment  of  act  justified,  330. 

in  nature  of  new  declaration,  with  more  certainty  than  original  decla- 
ration, 331. 
proper  to  show  trespass  ab  inilio,  289,  330. 

e.  g.,  of  seduction,  if  defendant  justifies  entry  of  premises  in  tres- 
pass, 130. 

special  replication,  form  of,  289. 
NEW  MATTER  — 

what  constitutes,  336,  337. 
39 


606  INDEX. 

References  are  to  pages. 
NEW  TRIAL  — 

by  awarding  venire  facias,  233. 
motion  for,  227,  228. 
grounds  for  allowing,  228,  229. 
errors  of  judge,  228,  229. 
misconduct  of  party,  229. 
misconduct  of  jury,  228. 
errors  of  jury,  230,  n. 
NIL  DEBET  — 

general  issue  in  debt  on  simple  contract,  280. 
but  improper  to  debt  on  a  deed,  280. 

NIL  DIGIT  — 

judgment  by,  239. 

NON  COMPOS  PERSONS  — 

• 

liable  for  torts,  91. 
how  they  appear,  518. 

NON  DAMNIFIC  ATUS  — 
when  proper  plea,  421. 

NON  EST  FACTUM  — 

when  proper  in  debt,  280. 

NONFEASANCE  — 

case  the  remedy  for,  136. 
NON- JOINDER  — 

pleadable  in  abatement,  182. 

plea  of,  must  aver  that  person  is  living,  183. 

of  tenants  in  common  taken  advantage  of  by  plea  in  abatement,  51. 

of  plaintiffs  ex  contractu,  60. 

of  defendants  ex  contractu,  61. 

of  plaintiffs  ex  delicto,  62. 

how  taken  advantage  of,  62. 

of  defendants  ex  delicto,  63. 
how  objected  to,  63. 

no  plea  required  when  fact  appears,  183. 

NONSUIT  — 

rule  as  to,  384,  n. 
NOTICE  — 

with  general  issue,  allowable  pleading,  368. 

NOTICE  TO  DEFEND  — 
binds  privies,  202. 

NOVEL  ACTIONS  — 

for  inducing  breach  of  contract,  137. 

for  mental  and  nervous  injuries,  137. 
NUISANCE  — 

when  private  action  lies  for,  66. 

successive  actions  for,  90. 

action  for,  137. 


INDEX.  607 


References  are  to  pages. 
NUL  TIEL  CORPORATION  — 

proper  to  question  impropriety  of  name,  183. 
NUL  TIEL  RECORD  — 

plea  in  debt,  280. 

OBJECTIONS  — 

when  they  must  be  specific,  232,  n. 
how  taken  to  evidence,  222. 

OMITTED  ALLEGATIONS  — 

when  cured,  416. 

how  treated  after  verdict,  433. 
OPEN  AND  CLOSE  — 

who  has,  219. 

OPTIONAL  REMEDIES.  90. 
ORDER  OF  PLEADINGS,  178,  566. 

cannot  be  varied,  179. 
ORIGINAL  WRIT  — 

ancient  function  of,  108. 

necessary  to  confer  jurisdiction,  109. 

origin  and  use  of,  109. 

issued  out  of  chancery,  109. 

the  only  authority  for  holding  a  plea,  109,  n. 

anciently  a  preliminary  step  in  an  action,  110. 

formerly  necessary  in  bringing  action,  111. 

form  of,  124. 

shaped  forms  of  action,  110. 

forms  of  action  corresponded  with,  111. 

declaration  formerly  followed,  466. 

example  of  recital,  466,  467. 

effect  of  abolition,  178. 

return  of,  142. 

OYER  AND  PROFERT  — 

of  documents,  when  ordered,  203. 

does  not  allow  inspection  of  original,  203. 

analogous  to  discovery,  204. 

of  what  demandable,  204. 

improper  denial  of  error,  203. 

demandable  in  all  actions,  204. 

setting  out  instrument  satisfies,  204. 

not  demandable  at  term  subsequent  to  profert,  205. 
OYER  OF  WRIT  — 

office  of,  186. 
PARLIAMENT  — 

the  ultimate  court  of  England,  21. 
PAROL  DEMURRER,  181. 

note  on,  523. 

PARTICULARITY  (see  CERTAINTY;  PLEADING). 


608  INDEX. 

References  are  to  pages. 
PARTIES  — 

different  principles  as  to,  in  law  and  equity,  26. 

same  person  cannot  be  both  plaintiff  and  defendant,  66. 

who  may  bring  an  action,  33. 

must  be  a  legal  entity  or  person,  44. 

designation  of,  as  plaintiff  and  defendant,  110. 

selection  of,  questions  involved,  33. 

who  legally  interested,  32. 

who  is  person  injured,  32. 

who  legally  interested  in  act  performed  by  agent,  32. 

common-law  rules  modified  codes,  47. 

party  legally  interested  must  sue,  36. 

real  party,  who  is,  36. 

nominal  and  beneficial  parties,  37. 

common  law  required  real  owner  of  assigned  non-negotiable  choses  to 

sue  in  name  of  assignor,  37,  40. 
right  to  use  name  of  assignor,  37. 

court  can  protect  beneficial  owners  from  release  by  formal  parties,  58. 
code  rule  is  that  real  party  in  interest  must  sue  in  his  own  name,  40. 
principal  may  sue  on  contract  made  by  agent,  44. 
undisclosed  principal  may  sue.  4fi. 
persons  in  privity  for  whose  benefit  a  contract  is  made  may  sue  on  it, 

41,  67. 

rule  as  to  sealed  contracts,  42. 

beneficiary  in  insurance  policy  need  not  be  in  privity,  43. 
to  actions  ex  contractu,  specific  rules  as  to  making,  74 
owner  of  freehold  not  interested  in  injury  to  freehold,  51. 
election  of,  45. 
when-  made,  binds,  46. 
in  cases  of  privity  when  either  may  sue,  46. 
shipper  or  consignee,  45. 
representative  parties,  45. 
administrators  as,  rules,  73. 
executors  as,  73. 
bankrupt  and  trustee  as,  72. 
specific  rules,  65  et  seq. 
bound  by  adjudication,  481. 
in  action  for  tort  — 

plaintiff's  rules,  79  et  seq, 

defendant's  rules,  81  et  seq. 
joinder  of,  46. 

common-law  rules,  46. 

plaintiffs  in  actions  on  contract,  46. 

logic  of  common-law  rules,  46. 

code  rules  not  radically  different,  47. 
who  may  be  joined,  48. 

joint  covenantees  without  interest,  when  joined,  49. 
all  whose  legal  interest  is  joint  must  be  joined,  50. 


INDEX.  609 

References  are  to  pages. 
PARTIES  (continued)  — 

all  united  in  interest  must  join,  56. 

joint  owner  cannot  release  after  suit,  57,  58. 

husband  and  wife,  ancient  rules,  77. 

partners,  rules  as  to  joinder,  69. 

misjoinder  and  non-joinder,  83,  84 

consequences  of  error,  00-64. 

how  errors  availed  of  and  how  cured,  60-64. 

promise  to  partner  accrues  to  firm,  50. 

rules  as  to  suing  and  being  sued,  75. 

joinder  in  libel  cases,  494. 

in  equity  — 

there  may  be  several  sets  with  different  interests,  47. 
all  interested  should  be  before  the  court,  47. 
PASSENGER  AND  CARRIER  — 

nature  of  action  for  breach  of  duty,  93. 

when  relation  exists,  107. 
PAYMENT  (see  GENERAL  ISSUE)  — 

general  plea  sufficient,  418. 

before  suit  to  joint  obligee  bars  suit,  59. 

after  suit,  contra,  59. 

PERFORMANCE  — 

how  alleged,  420,  424> 

of  collateral  conditions,  how  pleaded,  423. 
PERJURY  — 

remarks  on  prevalence  of,  538. 
PERSONAL  ACTIONS  — 

distinct  from  personal  right  of  action,  91. 

enumeration  of,  122. 

classified  as  ex  contractu  and  ex  delicto,  106. 
PERSONAL  LIBERT  Y- 

infringement  of,  imports  damage,  36. 
PLACE  (see  VENUE)  — 

not  generally  material,  389. 
PLACITUM  — 

ancient  place  of  trial,  516. 
PLAINT  — 

in  replevin,  138,  n. 
PLEADING  — 

definition,  1. 

described,  10. 

general  and  special,  defined,  2. 

special,  states  facts,  16. 

objection  to  general  pleading,  16. 

utility  of,  4, 16. 

a  necessity  to  orderly  procedure,  97. 


610  INDEX. 

References  are  to  paces. 
PLEADING  (continued)  — 

accuracy  and  precision  required  in  all  forms,  98. 

origin  of  system,  2,  255. 

common-law  system  of,  relation  to  existing  systems,  9. 

excellence  of,  11. 

necessity  for  understanding.  11. 

study  of,  recommended  by  writers  on  code  pleading,  29. 

common-law  system  occasioned  by  jury  trial,  101. 

distinct  issues  necessary  to  that  mode  of  trial,  101. 

origin  of  coming  to  issue,  256. 

not  of  legislative  origin,  254. 

cultivated  as  science  from  tempo  Ed.  L,  254. 

condition  of  tempo  Bracton,  99. 

influence  of  Roman  system,  540. 

observance  of  Roman  method,  540. 

growth  of  connected  system,  255. 

common-law  system  unknown  except  in  England,  255. 

anciently  oral  in  open  court,  146,  147,  511. 

later  written  in  law  French,  511,  512,  519. 

in  English  from  tempo  Ed.  III.,  520. 

ancient  treatises,  539. 

reformation  of,  10. 

in  force,  except  as  repealed,  11. 

rules  cannot  be  dispensed  with,  12. 

principal  rules  not  abolished  by  code,  12, 15. 

reason  for  ancient  technicality,  10,  16. 

principal  objections  covered  by  facility  of  amendment,  17. 

common-law  system  not  abolished  by  code,  9. 

common-law  system  not  affected  by  abolition  of  forms  of  action,  9. 

attempts  to  abolish,  25. 

not  more  complex  than  code,  30. 

early  simplicity  in  Pennsylvania,  21. 

rules  not  dependent  on  forms  of  action,  15. 

identity  of  equity  rules  and  principles,  12. 

law  and  equity,  relation  between,  14. 

formerly  the  same,  14 

code  pleading  — 

object  to  destroy  fictitious  pleading,  11. 

looseness  in,  11. 

theoretically  like  equity  pleading,  12. 

construction  of  code  provision,  anomalous,  132. 

principal  objects  of,  1,  10,  26,  100,  147,  254,  255,  262,  405. 

to  avoid  obscurity,  prolixity,  confusion  and  delay,  262. 

to  separate  law  from  fact,  10. 

to  apprise  opposite  party  and  the  court,  150,  405. 

to  ascertain  subject  for  decision,  255. 

to  evolve  disputed  matters,  255. 

to  separate  questions  of  law  and  fact,  255. 


INDEX.  611 

References  are  to  pages. 
PLEADING  (continued)  — 
rules  of  allegation,  254. 
suggestions  as  to  preparation  for,  103. 
the  art  of,  103. 

common-law  mode,  sufficient  under  code,  155.  n. 
matters  judicially  noticed  need  not  be  pleaded,  411. 
circumstances  implied,  need  not  be,  415. 
should  allege  only  operative  material  facts,  102,  107,  154. 
all  else  surplusage,  107,  155. 
should  consist  of  allegations  of  fact,  12. 
fact  distinguished  from  conclusion,  156,  410. 
evidence  pleaded  in  bill  of  discovery,  13. 
transaction  should  not  be  recited  at  large,  102. 

rule  of  construction,  432. 

construed  to  uphold,  432. 
facts,  how  stated  — 

recital  at  large  not  allowed,  107. 

positive  allegations,  when  required,  423. 

omitted  facts,  when  implied,  416. 

implied  allegation,  doctrine,  416. 

ambiguous,  unfavorably  construed,  432. 

narrow  application  of  this  rule,  416. 

alternative  not  proper,  440. 

disjunctive  or  alternative,  when  proper,  424 

facts  must  be  alleged  with  certainty,  405. 
certainty  — 

required  under  code,  406. 

greater  in  plea  than  in  declaration,  429.  430. 

must  have  certainty  of  place,  372,  389. 

indefiniteness  under  the  code,  408. 

certainty  in  replication,  406. 
general  mode,  when  allowed,  417. 

general  allegations  of  negligence,  when  sufficient,  175,  176. 
as  to  inducement  or  aggravation,  428. 
particularity  — 

as  to  complying  with  statute,  428. 

greater  in  plea  than  in  declaration,  429. 

what  required,  425. 

degree  of  required,  426. 
prolixity,  to  be  avoided,  411. 
surplusage,  to  be  avoided,  463. 

immaterial  matter  is,  107, 
must  not  be  double,  346. 

duplicity  in  narr.,  175. 

several  facts  constituting  single  point,  521. 
must  not  be  argumentative,  437. 
must  not  be  by  way  of  recital,  441. 
should  observe  approved  form  of  expression,  443. 


612  INDEX. 

References  are  to  pages. 
PLEADING  (continued)  — 

must  not  be  insensible  or  repugnant,  369,  431. 

must  not  be  in  alternative,  440. 

matters  should  be  alleged  according  to  legal  effect,  441. 

same  rule  under  codes,  441. 
disjunctive  form,  when  proper,  423. 
ought  to  be  true,  478. 

no  mode  of  enforcing  the  rule,  478. 
act  of  servant  must  be  so  alleged,  175. 
reference  from  one  to  another,  425. 
there  must  be  no  departure,  453. 
of  facts  naturally  coming  from  opposite  side,  413. 
presenting  mixed  question  of  law  and  fact  is  bad,  309. 
order  and  extent  of  —  declaration,  plea,  replication,  rejoinder,  surrejoin- 
der, rebutter  and  surrebutter,  195. 

when  begun,  146. 

succeeds  appearance,  518. 

when  most  proper  to  be  in  person,  574. 

order  of,  264. 

one  class  pleaded  at  a  time,  178. 

party  must  demur  or  plead,  264. 

cannot  plead  or  demur  to  the  same  matter,  371. 

PLEADING  OVER  — 

without  demurring,  effect,  270. 
waives  objections  of  form,  271. 
aids  construction  as  to  substance,  272. 

PLEAS  — 

defined,  1,  504 

classes  of,  177,  523. 

dilatory  and  peremptory,  177,  522. 

in  bar,  form  of,  178,  188,  189. 

confesses  traversable  facts  not  denied,  322. 

admission  by  failure  to  traverse,  ancient  application  of,  551. 

rule  in  equity,  322. 

all  are  in  evidence  and  may  be  read  to  jury,  323. 

must  be  by  way  of  traverse  or  in  confession  and  avoidance,  188,  196, 

265,  310,  321. 

of  traverses  (see  SPECIAL  TRAVERSE),  274. 
may  deny  all  or  a  single  material  fact,  265,  341. 

but  cannot  do  both,  265. 
in  confession  and  avoidance,  properties  of,  311. 

must  give  color,  312,  461. 

are  in  justification,  311. 

or  excuse;  examples,  312. 

must  conclude  with  verification  and  prayer  of  judgment  in,  312. 

must  answer  what  is  adversely  alleged,  321. 
amounting  to  general  issue,  how  questioned,  251,  459. 
traverse  of  inducement  not  allowed,  340. 
should  have  proper  commencement  and  conclusion,  444 


INDEX.  013 

References  are  to  pages. 

PLEAS  (continued)  — 

upon  negative  and  affirmative  conclusion,  is  to  country,  335. 
where  new  matter  alleged,  conclusion  is  with  verification,  335. 
exceptions  in  special  traverses,  335. 
to  debt  on  bond;  form,  205. 
dilatory  pleas  — 

do  not  confess  and  avoid,  326. 
to  jurisdiction  — 

when  and  how  pleaded,  179. 
must  show  another  court,  180. 
for  privilege  of  person,  184. 
in  abatement,  defeats  action.  186. 
classes  of,  183. 
when  applicable,  181. 
not  favored,  182. 
must  be  strictly  accurate,  182. 
that  another  suit  pending,  182. 
of  the  suit,  181,  184 
to  form  of  writ,  185. 
must  give  better  writ,  184.  472. 

exceptions  to  rule,  472. 
to  declaration  or  count,  184. 
to  the  person  of  plaintiff,  183,  523. 
for  misnomer,  example,  327. 
for  non-joinder  of  party  ex  contractu,  60,  61. 
for  misjoinder  of  parties,  60,  61. 
for  non- joinder  of  parties  ex  delicto,  62,  63. 
for  misjoinder  of  parties  ex  delicto,  62,  64. 
for  non-joinder,  form,  186. 
that  plaintiff  is  fictitious,  183. 
for  misnomer,  185, 
form  of,  185. 
for  non-joinder,  183. 

commencement  and  conclusion,  182,  564 
judgment  on,  237,  238. 
prayer  of  judgment,  184. 
in  estoppel,  conclusion  of,  448. 
in  suspension  — 

stays  proceeding  until  disability  removed,  180. 
suspends  action,  180. 
nature  of,  180. 

puls  darreign  continuance — 
when  proper,  198. 
incidents  of,  199. 
supersedes  all  former  pleas,  200. 
starts  pleading  de  novo,  200. 
must  be  extremely  certain,  200. 
example,  form,  200. 
must  show  authority,  404 


614  INDEX. 

References  are  to  pages. 
PLEAS  (continued)  — 
title,  399. 

in  chattels,  401. 

adversaries'  title,  401. 

particular  estates,  403. 

alleging  media  of,  402. 
anomalous,  incidents  of  — 

oyer,  profert  and  inspection,  204,  209. 
motion  to  strike  out,  when  proper,  251. 
two  alike,  one  stricken,  251. 
each  must  be  sufficient,  370. 
reference  from  one  to  another,  425. 
bad  in  part  bad  altogether,  451. 
must  be  properly  entitled,  477. 
signing  of,  152. 
POSTEA- 

form  of,  221. 

PRACTICE  — 

place  in  procedure,  7. 

on  objection  to  competency,  223. 

general  objections,  when  sufficient,  222. 

in  oyer,  profert,  inspection,  etc.,  204. 

after  verdict,  227. 
PR^ECIPE  — 

for  original  writ,  144. 

office  of,  145. 

and  writ  should  conform  in  theory,  100. 
but  rule  of  slight  importance,  100. 

not  necessary  in  case,  136. 

approved,  should  be  followed,  443. 

no  absolute  rule  requiring,  443. 
PRESUMPTION  — 

avoids  necessity  of  pleading,  416. 

aids  pleadings,  415. 

from  failure  to  adduce  proof,  219. 

operates  as  evidence,  219. 

of  continuance,  219. 
PRINCIPAL  AND  AGENT  — 

rules  as  to  parties,  68. 

rules  as  to  suing  and  being  sued,  75. 

when  principal  may  sue  on  contract  of  agent,  44 

when  agent  may  sue,  68. 

PRIVITY  (see  PARTIES)  — 

when  persons  not  parties  to  a  contract  may  sue  on  it,  41. 
doctrine  of,  and  scope  of  rule,  41. 
apparent  conflict  of  authority,  41. 
rules  of,  43. 
claim  of,  44 


INDEX.  615 

References  are  to  pages. 
PRIVITY  (continued)  — 

application  of  doctrine  in  favor  of  express  messenger  and  railroad  com- 
pany, 92. 

PROCEDURE  — 

necessity  for  study  of,  4 

place  in  jurisdiction,  5. 

scope  of  term,  7. 

effect  of  reformed,  4 

modern  reforms  in,  7,  8. 

reformed,  how  regarded,  10. 

code,  effect  of,  11. 

reform  in  Penn's  colony,  21. 

New  York  and  Pennsylvania  contrasted,  21. 

difference  in  theory  in  New  York  and  Pennsylvania,  22. 

technicality  of  New  York  code,  25,  n. 

essential  difference  between  legal  and  equitable,  26. 

code  and  common-law  contrasted,  27. 

claims  of  simplicity  of  code  unfounded,  27. 

elements  of  true  reform,  30. 

obstacles  to  true  reform,  30. 

common-law,  essential  to  code,  48. 

in  force  in  code  states  unless  directly  repealed  or  modified,  48. 

operates  by  punishment  through  damages,  26. 

by  seizure  of  property,  26. 

PROCESS  — 

object  of,  143. 
a  judicial  writ,  143. 
how  tested,  143. 
forms  of,  143. 
capias,  144 

PRODUCTION  OF  SUIT  — 

an  obsolete  matter,  469. 

obsolete  rule  as  to,  572. 
PROFERT  AND  OYER,  203. 

unnecessary  of  deed  stated  for  inducement  merely,  204 

rule  as  to,  474 

document  remains  in  court,  205. 

when  excused,  476. 

PROLIXITY  (see  PLEADING)  — 

general  pleading  avoids,  418. 
PROOF  (see  ALLEGATA  ET  PKOBATA)  — 

order  of  introducing,  222. 

allegation  must  be  proved  as  laid,  409. 

PROPERTY  — 
defined,  51. 
distinct  from  title,  51. 
and  interest  nearly  synonymous,  51. 
how  far  transferable,  38. 


016  INDEX. 

References  are  to  pages. 
PROPERTY  (continued)  — 

in  adverse  possession,  unsalable,  40,  89,  n. 

interest  in  consortium  is,  92. 

every  infringement  imports  damage,  36. 

taken  for  public  use  by  giving  compensation,  34. 

PROPOSITION  OF  LAW- 

separates  law  from  fact  in  trials  by  court,  217. 
PROTESTATION  — 

use  and  office  of,  323. 

example  of,  323. 

not  taken  on  matter  traversed,  325. 

should  not  be  repugnant  to  facts  alleged,  325. 

effect  in  another  suit,  325. 

PROXIMATE  CAUSE  — 
regarded  in  law,  104 

PUIS  DARREIGN  CONTINUANCE  (see  PLEAS). 
QUANTUM  MERUIT,  133. 
QUANTUM  VALEBANT,  134, 
QUARE  CLAUSUM  (see  TRESPASS). 

QUARE  IMPEDIT  — 

obsolete  writ  of,  114, 157. 

QUESTIONS  OF  LAW  — 
decided  by  judge,  514 

QUO  ANIMO  (see  INTENT)  — 

importance  of,  105. 
QUOD  RECUPERET  (see  JUDGMENT). 

REAL  ACTIONS  (see  ACTIONS)  — 
formerly  called  feudal,  112. 
distinct  characteristic  of,  96a,  112. 
defined,  106,  n. 

REAL  PARTY  IN  INTEREST  (see  PARTIES). 
RECITAL— 

when  insufficient  pleading,  440. 

pleading  by  way  of,  allowable  in  inducement  in  case,  441. 

example  of,  441. 
RECORD  — 

of  writs  and  forms,  111. 

permanent,  exist  from  tempo  Rich.  L,  149,  517. 
RECORD  ROLL  — 

how  prepared,  148. 

shows  issue,  212. 

made  by  parties,  34 

ancient  origin  of,  515. 

ancient  form  of,  516. 

how  made  up,  148,  151. 


INDEX.  017 

References  are  to  pages. 

RECOUPMENT  — 
right  of,  93. 

REFEREES  — 

in  matters  of  account,  124. 

REFORM  PROCEDURE  (see  PROCEDURE)  — 
working  of,  in  England,  25,  n. 

REGISTER  OF  WRITS,  111. 

REJOINDER  — 

example  and  form  of,  197. 

RELEASE  — 

how  pleaded,  199,  n. 

by  one  obligee  before  suit  bars,  59. 

by  one  obligee  after  suit,  contra,  59. 

of  one  of  several,  bars  further  remedy,  63. 

REMEDIES  (see  ORIGINAL  WRIT;  ELECTION  OP  REMEDIES)  — 
throws  light  en  right,  123. 
several  pursued  at  same  time,  90. 
election  of,  85.  , 

only  inconsistent  bar  each  other,  90. 

REMOTE  AND  PROXIMATE  CAUSE  — 
law  regards,  173. 

REPLEADER  — 

motion  for,  when  allowed,  231. 
awarded  on  immaterial  issue,  259. 

REPLEVIN— 

a  substitute  for  debt  in  the  detinet,  124. 

origin  of,  138. 

had  no  original  writ,  why,  138. 

regulated  by  statutes  in  most  states,  138. 

lay  originally  only  for  chattels  distrained,  138. 

lies  for  any  unlawful  taking,  94. 

lies  for  wrongful  taking  or  detaining,  138. 

a  possessory  action,  138. 

seeks  the  chattel  itself,  138. 

plaintiff  gives  bond  and  gets  the  chattel,  138,  n. 

declaration  in,  168. 

where  goods  are  obtained  on  writ,  139,  n. 

where  goods  are  not  obtained  on  writ,  139. 

pleas  in,  proof  under  non  cepit  and  non  detinet,  139. 

general  issue  in,  285. 

plaintiff's  title  questioned  only  by  special  plea,  285. 

allegation  of  property  in  third  person  is  inducement.  285,  n. 

allegation  of  property  in  defendant  is  inducement,  285,  n. 

damages  in,  139,  n. 


018  INDEX. 

References  are  to  pages. 

EEPLICATION  — 

plaintiff's  reply  to  plea,  195. 

commencement  and  conclusion,  449. 

improperly  filed,  stricken,  370. 

claiming  estoppel,  327. 

in  assumpsit,  form,  324 

to  statute  of  limitations,  275. 

to  plea  in  covenant,  297. 

by  way  of  traverse,  form,  196. 

by  way  of  confession  and  avoidance,  form,  197. 

EEPLICATION  DE  INJURIA  — 

improper  to  question  title,  interest  or  authority,  238. 

REPLY  DOUBLE  (see  DUPLICITY)  — 
motion  for  leave,  369. 

REPUGNANT  PLEADING  — 
what  constitutes,  369. 
prohibited  by  codes  and  common  law,  431. 
ground  for  demurrer,  431. 
one  may  be  stricken,  251. 

RES  ADJUDICATA  (see  ANOTHER  JUDGMENT  RECOVERED) 
object  of  the  rule,  479. 
foundation  of  the  rule,  480. 
foreign  judgments,  480. 
no  broader  than  issue  joined,  34,  148. 
mere  errors  do  not  vitiate,  148. 
what  it  embraces,  480. 
embraces  facts  and  law,  480. 
by  judgment  recovered,  334. 
extends  to  contested  matters  only,  481,  482. 
by  decision  on  demurrer  included,  481. 
decrees  by  consent  do  not  constitute,  481. 
where  cause  of  action  different,  481. 
in  identical  adjudication,  91. 
where  cause  of  action  identical,  481. 
suit  in  tort  is  not  against  contract,  92. 
indicated  as  to  cause  by  issue,  101. 
under  plea  of  liberum  tenementum,  401. 
how  pleaded,  481. 
binds  parties  and  privies,  481. 

RES  GEST^E  — 

the  transaction,  101. 

EESPONDEAT  OUSTER  — 
judgment  of,  269. 

EETURN  DAYS  — 
of  court,  143. 


INDEX.  G19 

Referencos  are  to  pages. 
RIGHT  — 

writ  of,  112. 
RIGHT  OF  ACTION  — 

meaning  of,  103,  104,  500. 

several  may  accrue  from  one  act,  91. 

gives  power  to  sue  in  court,  104. 

any  one  whose  right  is  infringed  has,  34, 

where  loss  does  not  give,  341. 

must  rest  on  legal  inquiry,  34. 

on  contract,  only  in  parties  or  privies,  35. 

damage  and  injury  must  unite,  35. 

none  arises  from  mere  loss  or  damage,  35. 

every  malicious  interference  causing  loss  gives  rise  to,  35. 

who  controls,  37. 

on  assigned  chose,  37. 

accrued,  may  be  transferred,  66. 

how  far  transferable,  168. 

personal,  distinct  from  personal  actions,  91. 

RIGHTS  — 

protection  of  them,  aim  of  society,  33. 

ROMAN  LAW  — 

no  separate  court  of  equity,  22. 
RULES  OF  PLEADING  — 

specific,  see  Table  of  Contents. 
SALE  — 

implied  from  conversion,  88. 

of  property  in  adverse  possession,  89. 

may  be  made  of  converted  property,  89. 
SCINTILLA  OF  EVIDENCE  — 

rule  as  to,  385. 
SEDUCTION  (see  TRESPASS;  TRESPASS  ON  THE  CASE)  — 

theory  of  right  of  action  for,  95. 

in  whom  it  vests,  95. 

forms  of  action  for,  95,  130. 

trespass  an  appropriate  form,  129. 

SET-OFF,  93. 

right  of,  affecting  election  of  remedy,  93. 

SEVERAL  COUNTS  — 

for  separate  causes,  498,  500. 

in  one  suit,  259. 

must  be  separately  stated,  98. 

in  one  declaration,  348. 

when  allowed,  356. 

for  single  cause,  a  relaxation  from  principle,  361. 

for  a  single  cause,  utility  of,  361. 

use  of,  under  the  code,  362. 


620  INDEX. 

References  are  to  pages. 

SEVEEAL  COUNTS  (continued)  — 

examples  of,  358. 

prevents  fatal  variance,  220. 

allegation  that  they  are  for  one  cause,  traversable,  331. 
SEVERAL  ISSUES  — 

production  of,  368. 

SEVERAL  JUDGMENTS  — 
when  a  bar,  63. 

SEVERAL  LIABILITY  — 

election  and  pursuing  till  satisfaction,  63. 
SEVERAL  PLEAS  — 

when  allowed,  365. 

examples  of,  365. 

not  allowed  of  dilatory  class,  370. 

early  statutes  allowing,  366. 

inconsistent,  when  allowed,  366. 

privilege  of,  not  absolute,  365. 

one  successful,  sufficient,  368. 

general  issue  with  notice,  368. 
SEVERAL  REMEDIES  — 

cannot  be  jumbled  in  one  count,  90. 
SHAM  PLEADING,  478. 

under  the  code,  479. 
SIMILITER  — 

use  and  form  of,  194,  33& 

may  be  waived,  194. 

omission  is  formal  defect,  338. 

SINGLENESS  (see  DUPLICITY)  — 

formerly  but  one  issue  allowed  for  each  subject,  260. 
does  not  permit  joinder  of  causes,  489. 
SLANDER  AND  LIBEL  — 
defined,  166. 

oral  words,  when  actionable  per  se,  167. 
written  words,  when  actionable,  167. 
words  implying  unchastity,  167. 
malice  is  gist  of  action,  167. 
malice  always  in  issue,  169. 
declaration  in,  anomalous,  154. 
declaration  in  (form),  165. 

structure  of,  165. 

mode  of  alleging  words,  443. 

the  charge  in  declaration,  167. 

inducement  in  declaration,  167. 

the  colloquium,  168. 

the  innuendo,  168. 

allegation  of  damages,  168. 
joinder  of  parties  in  action  for,  46,  n. 


INDEX.  C21 

References  are  to  pages. 


SOCIETY  — 

organized  to  protect  private  right,  33. 

SON  ASSAULT  DEMESNE  (Plaintiff's  own  assault)  • 
plea  of,  287. 
replication,  new  assigning,  form,  329. 

SOVEREIGN— 

capacity  to  sue,  65. 

SPECIAL  DAMAGES  — 

what  are,  468. 
SPECIAL  DEMURRER  — 

required  to  question  formal  errors,  266. 

includes  general,  268. 

not  carried  back,  268. 

required  for  argumentative.iess,  438. 

affected  by  statute,  266. 

SPECIAL  FINDINGS  — 

distinct  from  special  verdict,  226. 

control  general  verdict,  226. 

examples  of,  227. 
SPECIAL  PLEADING  — 

origin  and  meaning  of  term,  287. 

avoided  in  general  issue,  278. 

SPECIAL  REPLICATION  — 
form  of,  289. 
ancient  examples  of,  548. 

SPECIAL  TRAVERSE  — 
object  of,  291. 
effect  and  object,  297. 
adapted  to  evolving  questions  of  law,  298. 
example  of.  291. 

example  in  quare  dausum,  292,  293. 
adapted  to  questioning  landlord's  title,  298. 
replication  in  trespass,  294,  296. 
de  injuria,  287. 
after  de  injuria,  296. 
qualities  of,  303. 
brings  in  direct  denial,  300. 
objections  to,  302,  303. 
properties  of  inducement,  294. 
affirmative  part  is  inducement,  292. 
negative  part  is  the  absque  hoe,  292.  . 

inducement,  argumentative  denial,  300. 
inducement,  indirect  denial,  304. 
modern  application  of,  301. 
use  in  equity  cases,  301. 
inducement  in,  299. 
,     40 


622  INDEX. 

References  are  to  pages. 

SPECIAL  TRAVERSE  (continued)  — 
extension  of  use,  300. 

inducement  must  constitute  full  answer,  304 
does  not  tender  issue,  but  concludes  with  verification,  293,  335. 
with  new  matter,  requires  verification,  300. 
issue  tendered  on,  is  obligatory,  806. 
the  issue  on,  299,  306. 
mode  of  answering,  296,  297. 
opposite  party  cannot  traverse  inducement,  305. 

SPECIAL  VERDICT  — 

what  it  is,  225. 

must  find  fact,  225. 

cannot  be  required  of  jury,  226. 
STATE,  THE  — 

cannot  be  sued  without  consent,  34 

must  act  through  officers,  34 

one  may  sue  another,  65. 
STATUTE  — 

when  required  to  be  alleged,  412. 

STATUTE  OF  AMENDMENTS  AND  JEOFAILS  — 
note  on,  525. 
effect  of,  546. 

cures  omissions,  when,  433. 
cures  formal  defects  in  pleading,  272,  533. 
effect  on  arrest  of  judgment,  230. 
effect  on  repleader,  232. 

STATUTE  OF  FRAUDS  — 
how  availed  of,  429. 
when  writing  presumed,  429. 

STATUTE  OF  LIMITATIONS  — 

plea  of,  275. 

how  alleged,  444 

effect  on  election  of  remedies,  92. 
STATUTE  OF  WESTMINSTER— 

origin  of  action  of  trespass  on  case,  111. 

STATUTORY  RIGHT  — 

must  be  specially  alleged,  430. 
STRIKING  OUT  (see  MOTION  TO  STRIKE)  — 

sham  pleadings,  479. 
SUBJECT  OF  ACTION  — 

meaning  of,  105. 

but  one  within  an  issue,  260. 
SUIT  (see  PRODUCTION  OF  SUIT)  — 

technical  meaning  of,  469. 

antithesis  of  action,  65. 

jurisdiction  of,  154 


INDEX.  G23 

References  are  to  pages. 
SURPLUSAGE  — 
defined,  4G& 
example  of,  107. 

code  and  common-law  rule  same,  463. 
may  cause  variance,  464. 
how  remedied,  464 

descriptive  words  must  be  proved,  463. 
to  be  avoided,  463. 

SURVIVAL  OF  ACTIONS  — 
rule  as  to,  38,  91. 
of  joint  right  of,  68. 
of  tort  for  preventing  performance  of  contract  does  not  survive,  92. 

TENANT  — 

estopped  to  deny  landlord's  title,  298. 

^may  question  particular  estate  by  means  of  special  traverse,  298. 
TENANTS  IN  COMMON  — 

rules  as  to  joining,  53. 

must  join  in  trespass  to  real  property,  62. 
TENDER  OF  ISSUE  — 

is  made  by  concluding  to  country,  333. 

form  of,  333. 

of  fact,  333. 

to  be  tried  by  record,  334. 

TERMS  OF  COURT  — 

origin  of,  143. 

entitling  pleadings  of,  478. 
THEORY  — 

must  be  adopted,  24 

code,  equity  and  common  law  alike,  90,  97. 
and  adhere  to,  97. 
unless  changed  by  amendment,  97. 

of  action,  indicated  by  form,  97,  n.,  103. 

proof  must  correspond  with,  308. 
TITLE  — 

legal  and  equitable  examples,  51. 

must  be  shown  in  pleading,  391. 

when  it  must  be  alleged  in  extension,  395. 

rule  as  to  deviation,  395. 

pleading  particular  estates.  396. 

special  rules,  398. 

special  rules  as  to  heirs,  398. 

of  possession,  when  sufficient.  392. 

of  possession,  when  insufficient,  394 

alienation  or  conveyance  alleged  according  to  legal  effect,  398. 

certainty  required  in  alleging,  432. 

proved  as  alleged,  403. 

estopel  to  deny,  403. 


624  INDEX. 

References  are  to  pages. 

TITLE  OF  PLEADINGS  — 

rules,  477. 

TORT  — 

definition  and  elements,  108. 

arises  out  of  common-law  duty,  83. 

consists  of  violation  of  duty  imposed  by  general  law,  107. 

need  not  be  independent  of  contract,  106,  107,  n. 

a  name  for  wrongs  falling  within  writ  of  trespass  on  case,  132. 

distinguished  from  chose,  87,  33. 

how  far  transferable,  39. 

when  assignable,  40. 

when  assumpsit  arises  from,  89. 

waiving  invokes  fiction,  29. 

fiction  of,  waiving,  85. 

never  implied,  85. 

by  preventing  performance  of  contract,  92. 

TRANSACTION  — 
defined,  499,  500. 

meaning  and  importance  of,  103. 
in  code  and  practice  acts,  103. 
in  English  procedure  act,  495. 

TRANSCRIPT  OF  RECORD,  111. 

TRAVERSE  (de  injuria)  — 

the  ancient  term  for  denial,  524. 

pleading  by  way  of,  189,  191. 

in  general,  manner,  form  and  effect,  307. 

are  general  and  special,  274. 

common,  is  direct  contradiction,  275. 

common  traverse  tenders  issue,  274 

there  cannot  be  a  traverse  upon  a  traverse,  337. 

none  on  immaterial  allegations,  340. 

any  of  several  material  allegations  may  be  denied,  341. 

should  not  be  of  inducement,  340. 

must  be  of  matter  alleged,  310. 

may  be  of  matter  implied.  311. 

must  not  be  of  matter  of  law,  308. 

two  negatives  do  not  constitute  an  issue,  439. 

two  affirmatives  do  not  make  good  issue,  439. 

must  not  be  too  large  nor  too  narrow,  342. 

may  be  as  broad  as  allegations,  343. 

examples  of,  342. 

too  large  by  use  of  conjunctive,  343. 

too  broad,  a  species  of  negative  pregnant,  343. 

too  narrow,  being  partial,  345. 

observation  on,  too  narrow,  344. 

issue  must  be  tendered,  332. 


INDEX.  625 

References  are  to  pages. 

TRESPASS  VI  ET  ARMIS  — 

is  an  injury  committed  with  violence,  127. 

violence  may  be  actual  or  implied,  127. 

often  concurrent  remedy  with  case,  128. 

sometimes  difficult  to  distinguish  from  case,  128. 

substantially  different  from  case,  128,  n. 

where  facts  are  equivocal,  theory  indicated  by  form  of  allegation,  128. 

criterion  is  the  relation  of  force  to  injury,  128. 

features  of,  distinguishing  it  from  case,  131,  n. 

not  necessary  that  defendant  intended  unlawful  act,  128. 

intent  may  determine  liability,  129. 

must  be  voluntary,  128. 

species  of  — 

trespass  to  the  person,  129. 
trespass  de  bonis  asportatis,  129. 
trespass  quare  clausum  fregit,  129. 
to  the  person,  see  ASSAULT  AND  BATTERY. 

is  for  assault,  assault  and  battery,  false  imprisonment,  or  seduction, 
129. 

declarations  in  assault  and  battery,  160,  358. 
for  false  imprisonment,  170. 

defense  of  moderate  chastisement,  436. 

plea  in  (form),  368. 

pleading  plaintiff's  own  wrong,  287. 

plea  alleging  plaintiff's  own  assault,  287. 

replication  de  injuria,  288. 
quare  clausum  fregit  — 

lies  for  unlawful  injury  to  real  property,  129. 

lies  for  forcible  entry  on  land,  114. 

is  a  local  action,  379. 

arising  beyond  state  treated  as  transitory,  381. 

gist  is  injury  to  possession,  130. 

used  as  a  remedy  for  seduction,  130. 

may  lie  against  real  owner,  114,  129. 

damages  to  crops  and  trees,  when  recoverable  in  trespass  de  bonis,  94. 

may  be  waived  and  action  brought  for  property  taken,  94. 

title  of  plaintiff,  130. 

joinder  of  parties,  62. 

declaration  in,  160,  161. 

allegation  of  breaking  and  entering,  428. 

matters  in  aggravation,  428. 

general  issue  is  not  guilty,  281. 

scope  of  general  issue,  281. 

general  issue,  questions  plaintiff's  title,  281. 
denies  act  of  trespass,  282. 

special  pleas  in,  281. 

justification  or  discharge  specially  pleaded,  282,  286,  n. 

reply  to  justification,  282. 

damages  recoverable  in,  94. 


626  INDEX. 

References  are  to  pages. 

TRESPASS  VI  ET  ARMIS  (continued)  — 

de  bonis  asportatis.  lies  for  goods  and  chattels,  94,  129. 
title  of  plaintiff,  129. 
damages  recoverable  in,  94 
denying  property,  282. 
db  initio,  129. 

application  of  doctrine  of,  131. 
shown  by  new  assignment,  289. 
TRESPASS  ON  THE  CASE  (see  ASSUMPSIT)  — 
origin  of  the  form  of  action,  111,  132. 
so  called  because  case  set  forth  at  length,  131. 
marked  boundary  of  legal  remedies,  112. 
the  usual  remedy  for  wrongs  without  force,  136. 
embraces  many  species  of  injury,  131. 
lack  of  precedent  no  obstacle,  136. 
modern  enlargement  of  remedy,  136. 
concurrent  with  trespass,  when,  128. 
lies  for  forcible  injury  where  malice  or  negligence  relied  on  as  gist  of 

action,  128. 

lies  where  covenant  or  trespass  will  not,  181. 
is  an  equitable  action,  131,  n. 
is  very  wide  in  its  application,  131,  n. 
the  presence  of  force  will  not  defeat,  131. 

is  universal  remedy  for  wrongs  where  force  is  not  the  gist,  131. 
distinguished  from  trespass,  131,  n. 
in  theory  based  on  tort,  132,  133. 
statutes  abolish  distinction  in  form,  131. 
a  distinct  form  of  action,  133. 
substantially  different  from  trespass,  132,  n. 
declarations  in,  163. 
recital  in  inducement,  441. 
declaration  in,  in  trover,  164 
for  libel,  165. 

modern  declaration,  malicious  prosecution,  169. 
for  malicious  prosecution,  170. 

modern  declaration,  for  negligence  to  passenger,  173. 
for  negligent  injury  by  servant,  175. 
allegation  of  due  care,  when  necessary,  175. 
general  issue  in,  284 
breadth  of  general  issue  in,  284 
TRESPASS  TO  TRY  TITLE,  120. 
a  substitute  for  ejectment,  120. 
in  form,  trespass  quare  clausum  fregit,  with  notice  of  intention  to  try 

title,  120. 

in  Texas,  is  exclusive  action  to  try  title,  120. 
abolished  in  South  Carolina,  120. 

divested  of  fictions  which  marred  action  of  ejectment,  120. 
will  lie  against  an  adverse  claimant  not  in  possession,  120. 
is  like  bill  to  remove  cloud,  120,  121. 


INDEX.  627 

References  are  to  pages. 
TRESPASS  TO  TRY  TITLE  (continued)  — 

may  be  maintained  against  a  tenant  holding  over,  120. 
plaintiff  must  rely  upon  his  own  title,  121. 

third  person  through  whom  defendant  holds  may  ba  made  a  party,  121. 
nature  of  title  necessary  to  maintain.  121. 
several  tracts  of  land  may  be  sued  for  in  one  action,  121. 
governed  by  rules  applicable  to  ejectment,  121. 
defense  of  stale  demand  not  allowed  by  trespassers,  121. 
plea  of  not  guilty  puts  in  issue  trespass  and  title,  121. 
verdict  must  locate  boundaries,  121. 
judgment  is  for  damages,  122. 
successful  plaintiff  gets  writ  of  possession,  121. 
TRIAL  — 

meaning  of,  528. 
how  conducted  in  chancery,  27. 
must  be  of  issue  joined,  194. 
of  facts  — 

modes  of,  215,  23& 

by  court,  217. 

at  bar,  distinct  from  trial  at  nisi  prius,  217. 
by  wager  of  battle,  233. 
by  grand  assize,  233. 
by  record,  234 
by  certificate,  234,  335. 
by  witnesses,  235. 
by  inspection,  235. 
by  wager  of  law,  235. 
ancient  modes  of,  528,  534,  537. 
by  jury  (see  JURY  TRIAL),  215. 

account  of,  534 
TROVER  (see  CONVERSION)  — 
waiver  of,  88. 

lies  wherever  trespass  for  taking  will,  136. 
will  not  lie  for  goods  in  custody  of  law,  135. 
lies  to  try  title  to  goods,  135. 
claim  is  for  damages  for  conversion,  135. 
based  on  legal  title,  135. 

real  owner  not  in  possession  may  maintain,  136. 
intent  immaterial,  135. 
gist  of  action  is  conversion,  135. 
motive  of  defendant  is  not  material,  135. 
original  taking  may  have  been  lawful,  135. 
proof  of,  135. 

demand  and  refusal  prima  facie  evidence  of,  135. 
purchaser  in  good  faith  may  be  guilty,  135. 
declaration,  164 
description  of  property,  164. 
pleas  in  justification,  165. 
pleading  defenses,  408. 
damages  in,  165. 


628  INDEX. 

References  are  to  pages. 
UBI  JUS,  IBI  REMEDIUM  — 
importance  of,  33. 
apparent  exception  to  rule,  33. 
limited  by  original  writs  or  action  on  the  case,  112. 
the  spirit  of  remedial  law,  136. 
utile  per  inutile  non  vitiatur,  383,  432,  463,  464. 

VARIANCE  — 

doctrine  of,  219. 

between  declaration  and  writ,  99. 

proof  must  correspond  with  theory  of  action,  134,  135. 

degrees  of,  220. 

and  failure  of  proof,  how  different,  220. 

when  immaterial,  220. 

when  material,  458. 

must  be  in  substantial  matter,  220. 

must  be  pointed  out  on  trial,  221. 

similar  to  departure,  453. 

mere  surplusage  will  not  constitute,  464. 

as  to  quality,  may  be  material,  389. 

as  to  place,  immaterial,  389. 

VENIRE  FACIAS  DE  NOVO  (New  Trial)  — 
the  jury  summons,  216. 
when  allowed,  233. 
formerly  described  issue,  26L 
not  so  now,  262. 
form  of,  375. 

VENUE  — 

ancient  reason  for,  372. 
history  of  venue,  373. 
modern  law  of,  373. 
ancient  reason  for  rule,  375. 
have  passed  away,  375. 
modern  reason  for  rule,  377. 
what  actions,  local  and  transitory,  378. 
when  strict  rule  inapplicable,  381. 
change  of,  ancient  practice,  558. 

VERDICT  — 

is  an  affirmative  or  negative  of  issue,  "221. 

must  be  on  issue,  218. 

settles  what  questions,  218. 

may  be  several  in  one  suit,  226. 

general  and  special,  224. 

may  be  oral  or  written,  221. 

may  be  reduced  to  form  by  court,  221. 

form  of,  221. 

entry  called  posted,  221. 

statute  of  amendments  aids,  221. 


INDEX.  621) 

References  are  to  pages. 
VERIFICATION  — 

of  dilatory  pleas  required,  523. 
VIDELICET  (to  wit)  — 

use  of,  381. 

does  not  aid  material  fact,  383. 

excuses  exact  proof,  403. 
VI  ET  ARMIS  (see  TRESPASS). 
VIEW  — 

demand  of,  201. 

reason  for  granting,  201. 

of  premises,  practice  of,  201. 
VOUCHER  OF  WARRANTY  — 

office  of,  202. 
WAGER  (see  PLEADING  OVER)  — 

of  battle,  233,  535. 

of  law,  235,  536. 

plea  tendering,  335. 

WAGES  — 

master  and  servant;  action  for,  distinct  from  that  for  wrongful  dis- 
charge. 105. 
WAIVER  — 

not  proven  under  plea  of  performance,  420. 
of  direct  allegations  by  pleading  over,  433. 
of  contract  and  suing  in  tort,  85. 
of  crime  or  tort,  doctrine  of  — 
utility  of,  practice,  85,  86. 
involves  a  fiction,  29. 
original  limitation  of  rule,  88,  89. 
does  not  allow  ignoring  actual  adverse  possession,  89,  90. 

WARRANTY  — 

voucher  of,  202. 
WASTE,  ACTION  OF  — 

abolished  in  England,  117. 

equity  would  enjoin,  117. 

was  a  mixed  action,  117. 

concurrent  with  trespass  on  case,  117. 

case  for  waste  would  lie  against  a  stranger,  118. 

action  in  America,  118. 

lies  against  one  in  lawful  possession,  117. 

lies  against  a  tenant,  117. 

or  against  a  stranger,  117. 

will  lie  under  code  against  trespasser,  118. 

distinguished  from  trespass,  118. 

English  statutes  allowed  treble  damage  for,  117,  118. 
WHEREAS  — 

the  mode  of  recital,  441. 


630  INDEX. 

References  are  to  pages. 
WITHDRAWING  A  JUROR  — 
practice,  885. 
works  a  continuance,  385.  | 

WITNESS  — 

competency,  how  questioned,  222,  n. 

WRIT  — 

conforming  to  theory  of,  99. 
origin  of  formal,  505. 
by  whom  issued,  144, 145. 

WRIT  OF  ENTRY  — 

ancient  action  to  try  title,  118. 

lay  at  suit  of  owner  of  freehold,  119. 

abolished  in  England,  119. 

in  use  in  Maine,  New  Hampshire  and  Massachusetts,  119. 

one  tenant  in  common  can  recover  on  his  share,  120. 

title  must  be  a  grant  or  accompanied  with  seizin,  119. 

demandant  (plaintiff)  recovers  on  strength  of  title,  119. 

possession  good  against  stranger  to  title,  119. 

essentials  of  declaration,  119. 

pleading  must  describe  premises  sufficiently  for  identification,  120 

equitable  defenses  in,  119. 

defenses,  120. 

damages,  value  of  use  and  for  waste,  but  not  consequential  damages,  119. 

damages,  defendant  may  set  off  taxes  and  betterments,  119. 

judgment  rendered,  119. 

WRIT  OF  ERROR  — 

is  a  proceeding  in  an  appellate  tribunal,  223,  246. 

if  allowed  before  execution,  formerly  suspended  further  action,  246. 

but  supersedeas  is  now  required,  246,  n. 

formerly  an  original  writ  out  of  chancery,  246. 

is  now  a  judicial  writ  sued  out  of  appellate  tribunal,  246. 

formerly  remedied  only  errors  of  law,  247,  250. 
but  now  reaches  all  errors,  247,  n. 

procedure  on,  250. 
WRIT  OF  EXECUTION  — 

issues  after  judgment,  245. 
WRIT  OF  POSSESSION  — 

successful  plaintiff  in  real  action  has,  96a,  123. 

WRIT  OF  RIGHT,  112. 

WRITS  — 

register  of,  111. 

WRONG  — 

none  without  a  remedy,  33. 
the  spirit  of  remedial  law,  136. 

YEAR  BOOKS  — 

ancient  record  of  causes,  515. 


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